Remarks delivered at the 29th Annual Fordham IP Conference
Director of the U.S. Patent and Trademark Office Kathi Vidal
April 21, 2022
Thank you so much, Hugh.
As you know, it took a while to get through the confirmation process, and we have a big list of things we want to do. We’ve been working around the clock and tirelessly over the last week. You’ll see the results of that starting to roll out today. I’m really excited about that. We have a lot of really tough issues that are in front of us, and you’re going to start seeing us tackle them. Some issues are going to take longer. I would ask stakeholders to be patient and continue to dialogue with us while we figure out the best way to solve issues in a way that’s best for the country.
I will also say that being here at the USPTO for about seven days now, I could not be more impressed with the talent here, with the exceptionalism, with the passion, with the dedication of everyone with whom I’ve worked. Together, we’re going to make great progress in the years to come.
I also want to say that I’m excited this is my first speech outside of the USPTO. We really need to work together within the USPTO, with the Copyright Office and Shira [Perlmutter] here, within [the Department of] Commerce, within the Administration, and with our allies here, [António Campinos of the European Patent Office, Shira Perlmutter of the U.S. Copyright Office, Marco Giorello of the European Commission, and Antony S. Taubman of the World Trade Organization], to advance strong intellectual property protection that is fair, accessible, and transparent to all.
I also want to say that I’m really pleased to serve an Administration that believes in equity and prosperity. An Administration that is focused on prosperity for all Americans. One that’s focused on equity—to make sure that everybody has access. One that believes in action. And although it’s taken a while for the USPTO to move forward, given that we didn’t have political leadership until now, you’ll see that action across Commerce and across the Administration. You’ll see there’s much action that’s being taken.
This Administration believes in strong intellectual property protection, and knows that strong intellectual property plays a key role in bringing ideas to impact. That is so critical to me, and it’s one of the reasons why I was so delighted when I was asked to serve in this Administration. I’ve had conversations with Secretary [Gina] Raimondo and Deputy Secretary [Don] Graves on using our intellectual property system to create jobs and greater economic prosperity.
I also want to talk a little bit today—because this is my first speech to the public—about my goals. About why I felt so compelled to serve the public. It’s because I believe that our innovation system, our patent system, and our intellectual property system really need to work for the public good. This is not a new idea. This is something that went back to the framers of our Constitution. In 1788, James Madison invoked “the public good” as the entire reason for having a patent system. And the framers of our Constitution believed that the patent system would work for economic growth and a higher standard of living for all. So, in everything that you’ll see us do, that is what we’re keeping in mind, first and foremost—that our system needs to work to incentivize innovation. And when I talk about innovation, I mean innovation in terms of product development, in terms of brands, etc. And our system needs to protect that innovation, not only in the United States, but across the globe. And we need to find ways to bring more innovation to impact. So that is what you’re going to see in everything that we do.
In terms of my mission, I see it as going back to those first principles. To what our country needs. It’s what every country needs: the creation of jobs, the creation of economic prosperity, of coming up with innovation that’s going to solve world problems like climate and other issues. Certain technologies like clean tech and pharmaceuticals need the patent system to incentivize innovation and to protect that innovation. We need to think not only about creating that innovation in the first place, creating the breakthrough drugs, like what we’ve seen with COVID. We also need to think about incentivizing the follow-on innovation and getting that innovation into the hands of the people who need it.
At bottom, what I’m really focused on is what I call “innovation to impact.” In the first instance, doing everything that we can to incentivize innovation from all—getting out into communities, meeting people where they are, making sure that everybody has access and incentives to innovate. And then protecting that innovation. Working with my colleagues on this video to protect that innovation across the globe, in a fair and transparent way. And, getting that innovation to impact—figuring out ways to fund it, to create collaborations based on that innovation so that we solve world problems and create greater economic prosperity.
Following her remarks, Director Vidal participated in a panel discussion moderated by Hugh Hansen of the Fordham IP Institute, with António Campinos of the European Patent Office, Shira Perlmutter of the U.S. Copyright Office, Marco Giorello of the European Commission, and Antony S. Taubman of the World Trade Organization.
The transcription of the panel discussion below has been lightly edited for readability without changing any substance, and only includes remarks by USPTO Director Kathi Vidal.
Hugh Hansen: Where are we right now, would you say we're in trouble?
Kathi Vidal: So that's a really good question, and what I would say is, number one, I think within the USPTO we've laid a lot of groundwork, we've created a lot of collateral. We have camps for innovation, we have outreach programs, we have our regional offices across the country, so we have laid a lot of groundwork in the last few years. We need to connect the dots now, I think that's really what it's going to take, and in terms of whether it's steady as we go, that's never been my motto. I wouldn't be here, if it was just, you know, keeping the ship going straight ahead.
I would say that the U.S. is an incredibly talented, incredibly innovative society. There's so much passion. It's part of our ethos, and what we really need to do now is moving government at the same pace that we're moving in innovation. So, are we in a good place? I think we're in a fine place, but we need to do more. We need to be incentivizing and creating and being innovative just like all of our companies.
HH: I know Kathi wanted to do something, and I cut off and said we can do that in the general discussion, if you want to continue with that, please do.
KV: Thank you, I’m happy to. I love all of your comments. I thought there was so much great content there. As to whether we're steady as we go or, you know, really having to innovate and move forward, I just think there's so much with the way that we interact in terms of commerce, the way new and emerging technologies are developing, so I think that's something we're all grappling with. I know that today at the USPTO we have Design Day, which happens once a year, where we focus on design patents. I’m speaking at that later today. And one of the things that we're going to announce is the result of the study on the article of manufacturing. We've put together a summary. We're going to send that out today and then over the coming weeks, coming months, maybe, we're going to have to grapple with the way we interpret the laws and whether that's adequately protecting and incentivizing innovation. I appreciated that comment from Shira. A couple other comments for Shira, and I’ll just throw them all out there, love that you're getting a chief economist. I think that's one of the greatest assets the USPTO has; it enables us to act on data, to gather data to make sure that the decisions that we're making have the intended effect. Kudos to you on that. That would have been my first move as well, and I look forward to sharing our data and seeing what we can do together with that.
I’ll also share, I mentioned the small claims tribunal is something that USPTO is looking into as well. It's an initiative outside of the USPTO that I lead with the Sedona conference, just figuring out ways to adjudicate some of these issues with IP for people who don't have the resources, or where the amount and controversy is low. I’m looking forward to learning from Shira. We've already had some discussions about this in terms of how that gets implemented.
I know there's a similar process in Europe that we've studied and are trying to learn from as well. I just wanted to express my thoughts on that last point and then I’ll turn it over to others. Shira mentioned CI2, the Council for Inclusive Innovation that's a terribly important initiative that we're moving forward. It is within the USPTO, but it is chaired by the Secretary of Commerce. I’m the vice chair, and I look forward to working with Shira on that. There are so many aspects to that and so much progress that's been made already. In terms of big thinking, that council is incredible. You can go to the CI2 website and look at all the incredible talent that we brought together to try and solve these issues on inclusive innovation. I think you're going to see a lot of movement when it comes to that, and I’m really excited about that.
HH: Why are you now where you are Kathi?
KV: I was approached about a year and a half ago by a couple people and they just asked, “Is this a position that you've always aspired to have, would you be interested in doing it?” And you know, my first comment was it wasn't one that I aspire to have. I’m always happy with what I’m doing, and I stay laser focused on my objectives, and I don't always think about what do I want to do next. For me, I think about how can I serve people in my current role. I hadn't thought about it before then. When they did ask me, I put some hard thought into it. I thought about where we are right now in terms of our IP system. The fact that there's just so many challenges, which to me means there's so many opportunities, you know, in part because of just the globalization of all of all the issues in terms of trade in terms of, you know, some of the abuses that we've seen by various entrants. I thought about that. I thought about all the work that I’ve done over the decades on inclusion and knowing that you need to bring everybody to the table to solve the big issues. I believe strongly that we need to keep inventing technology, solving issues with technology, lifting everybody with technology, and the only way to do that is to have an effective system.
And then, who I also thought about, every director brings their own thoughts their own, you know, what they value, what they embody to this position, and I thought, “In this position, I would want to make sure the lane wasn't just about protecting innovation.” It was about doing what we can, engaging at every level, engaging with the school systems, engaging with HBCUs, engaging with communities to really incentivize innovation from day one, and draw more innovation out of the country. In terms of the protecting of the innovation, I just thought it was just an exciting time to work across the agency. We share with other countries too, to figure out the best way to protect innovation that really goes back to those first principles. I was very excited about that too.
You think of it not in terms of how do we balance what everybody wants, but how do we really think about getting more innovation and protecting more innovation. Not only, like I said, from the original innovators, but we need to disseminate that innovation. We need to protect it and collaborate with others and figure out ways to do that, so that we can solve world problems and create more jobs, and then, and that gets to the impact of it.
Once I sorted out what would I do if I were in that position, it just seemed like of course I want that, of course, that's something that I would do. But, but I will say to you that the one thing that I made clear, the entire time for this process, was I don't want, I didn't want, to lobby. I didn't want to go forward with, you know, certain entities’ support because I want to serve the country now. I just want to make sure that I’m always thinking about what's best for the country. You know, as I started thinking about that, I thought of no better place than I’d rather be right now.
HH: Are you going to run for office at some point?
KV: I don't look beyond where I am right now.
HH: Any comment on the New York Times editorial?
KV: Sure, I’m happy to address that. I know what it's about it, I can explain it, and I can respond to it. The editorial was directed to whether the IP system is working when it comes to drug patents, or whether it's being abused. There were different thoughts expressed in that editorial, but that was the general sense of it. There were some suggestions made in the editorial about what we can do as the USPTO to shore up the system to make sure that it's working. To advance innovation, but not stepping beyond that and raising drug prices and not allowing the drugs to get into the hands of people who need them. I would say, in response to the question, I very much appreciate all the dialogue on this. I know that we had a conference at [George Washington University]. It was a USPTO, GW, and others were involved in that recently, I think the FDA was involved, where we brought some of the best minds in the country together to talk about these issues, to talk about the data. There's a lot of different sources of data, and this is one area where it's hard to parse the data, because there is no real authoritative source of data, so the article addresses some of that.
Overall, number one, I think that was all of this dialogue is important, as to whether the USPTO can do better; absolutely, that is the case. There is a letter right now from the FDA sent over to the USPTO in response to an Executive Order on this very topic about how the USPTO can collaborate more with the FDA. How we can make sure that we're issuing strong patents, how we can perhaps curb some of the abuses that, that people have identified, or that they perceive. We are, right now actually, working on the response to that. We've got a great draft.
I’m looking forward to responding to that, and I’m sure that will be out in the public in terms of some of the things we're thinking here at the USPTO. I thought some of the ideas in the editorial had merit, and I will say, just overall, whether you're in the New York Times, whether you've just got a great idea, and you, and you want to express it more privately, I want to hear all the good ideas. I thought a lot of those were really good, I think it is just part of a long, continuing dialogue.
I think these issues should be addressed sooner rather than later. I was speaking at the White House yesterday with the crew there on this very issue, and I’m looking forward to sharing some of the thoughts. I’ll just tell you that I do think that the FDA and the USPTO can have a greater collaboration. We can do more training of examiners in terms of what is something that people skilled in the art would consider as non-obvious, what would they consider obvious. I think there's a lot of learning that can happen between the USPTO and the FDA on that. I think we can elaborate more in terms of data to make sure that they're not certain representations being made at the FDA and different representations being made at the USPTO.
There are also initiatives we've already undertook in terms of making sure that our examiners have as much prior art as we can get in front them. That way, when they're making these decisions on whether to grant a patent, they have access to that kind of data to the broader base of prior art and better search tool. That's just a little bit of a preview. You're going to see more ideas actually expressed in my response to the FDA, but that that's a very good question. It's a very, very important issue. As you know, the President believes very strongly that we need to make sure we get drugs into the hands of people who need them. But the Administration also believes, as do I, very strongly in intellectual property, and that we need to have a strong system or those drugs wouldn't exist in the first place. Thank you for asking that.
HH: You have to worry about who's in the White House or who's here, who's the head of the WIPO. What extent are these things sometimes personal preferences of people around the world that you have to consider?
KV: In terms of political developments, you know, I do think that there is. And I think Antonio mentioned that there are certainly people who believe that we need to do whatever we can to foster innovation and to protect our big companies and to make sure that they're successful because they're a critical part of our economy. But there's also the need to make sure that we're incentivizing innovation from small inventors and that we're promoting them as well. And that we're promoting that diversity and we're reaching out into under developed communities and underrepresented individuals and creating innovation. So, I think if you look at the political landscape right now in the U.S., you might find that some people are a little bit more concerned with one versus the other, or at least want to make sure that they're taken care of. So, I think when you talk about the political nature, that is, to me, the only really dynamic part of it.
Everybody that I’ve spoken to, whether they are asking questions about the bigger companies, whether they're asking questions about the independent inventors, they want the system to work. They want it to work. They want to make sure that we're incentivizing innovation.
Real briefly, on our academic institutions, I think there's a lot we can learn from them, I think that they do highly value IP. If you look at our academic institutions, they're really good at innovation harvesting. They're really good at tech transfer, of taking the ideas they developed within the academic institutions and bringing them to impact. And, at least within the U.S., they play a critical role, and offering these pro bono services that we've been talking about, so I see only positives and collaborating with them more and learning from them.