Remarks by USPTO Director Kathi Vidal at the 15th Annual Design Day

Remarks delivered at the USPTO

Director of the U.S. Patent and Trademark Office Kathi Vidal

April 21, 2022


As Delivered


Thank you so much, Lakiya. I am looking forward to working with you. I also want to thank Karen Young, who is the director of our design technology center and for her leadership and guidance. She's got over 200 design patent examiners in her group, many great people like the supervisory patent examiner before you. So thank you, Karen, for all you're doing.

I know you have a lot of great comments and a lot of great data you're going to share today. I also want to thank all of our design patent examiners for all the hard work you do. I know that the number of design patents that are filed increase every year. I am going to go through a little bit of that data and Karen will get into more of it later. I know there is a lot to get through to ensure that we are protecting designs and that we are protecting the strong ones.

And lastly, I want to thank the co-sponsors of today, AIPLA and IPO. I have to say that although I was fine with the confirmation process taking a little time, because it certainly gave me time to study up on all the issues, I was secretly hoping I'd be on board before today. So happy that happened, that I joined seven days ago, and lucky to be here with you today.

I will say, in this one week that we've had together, it's been an extremely packed week. We've been working really hard on a lot of the really key issues. And we've been working with so many talented people. I knew the PTO was phenomenal when I was on the outside, but I can't even tell you how phenomenal the people are, now that I'm on the inside.

In terms of next steps, I am really looking forward to engaging with stakeholders. I know there's a link on the USPTO website if you would like to engage; whether as an organization or as an individual we will make it all happen. I want to hear your ideas. I want to hear how we can improve things. And lastly on the big points, I want to let you know that the main goal that I have is really working with the USPTO, working with Commerce, to bring more innovation to impact. And to me that involves three things.

Number one, we need as a country to incentivize more innovation. We need to do it from the K-12 level. We need to do it beyond that. We need to do it, as Lakiya said, in underrepresented communities, in geographic regions that haven't had as much innovation, and we also need to do it even more in our big companies to make sure that we are continually being innovative.

And then, of course, we need to play the traditional role of making sure that we're protecting that innovation, that we're protecting strong innovation, so that people will invest in our companies, will invest in our individuals.

And lastly, we really need to bring that innovation to impact. We need to make sure that we're innovating in all the scientific areas that need innovation, whether it be in the medical field, whether it be AI or quantum. Do everything that we need to do to create jobs, to better our economy, to increase equity, and to solve world problems. And lastly, in terms of next steps, I definitely want to engage with stakeholders sooner rather than later. I also recognize we have a lot of really big issues, really hard issues, to solve. And so, if I'm not taking meetings immediately, that's because I'm working around the clock to solve those with the great people here at the USPTO.

And one of them, which I actually was going to save for the end, but I'll tell you now, is I'm focused on the articles of manufacture. You will be seeing a release today on that. I'm very excited about that. It's going to share the comments that we received. I know we received comments: the numbers didn't matter, it was the kinds of people that commented and the diverse views that were expressed from IPO, from AIPLA, from small entities, from large corporations. And we had thousands of people actually reviewing the material, which just shows how important this issue is. So, I know it's a very difficult issue. I know that it's one of those things where technology is moving at such a fast pace, and we need to make sure that we're interpreting the laws here at the USPTO, and to the extent that we're helping assist in creating them, by consulting with Congress, we have to keep in mind that the world is changing and we need to keep up with that.

We need to anticipate new changes and make sure that we're, at bottom, serving first principles of incentivizing and protecting innovation. So, I just want to go through a little bit in terms of the history, which I thought, I'm a data nerd, you'll learn that about me if you haven't heard already. So, the U.S. began issuing design patents in 1842, which was about 52 years after the first utility patent laws were passed in the Patent Act of 1790. And although it lagged a little bit in time, if you look at the trajectory of design patents, it's just increasing day over day. In the first year, only 12 design patents were filed. I mean, can you imagine that? I imagine if I were a design patent examiner, I would just be shocked. I might even hope it was down to those numbers. So, 12 the first year, and year after year, we've been breaking records. In fiscal year 2021, design patent applications surged just over 17% to a record 54,200.

So, we've gone from 12 a year to 54,200. That's an increase of 8,000 filings from the 46,100 in 2020. The fact that applications have been increasing day after day, decade after decade, just shows you how valuable design patents are. They are valuable to economic growth, to job creation, and the health of local communities. And the good news about that is we're doing a great job of protecting those designs. The other part of the news, that is something that I would love your help on as we move forward, is other people have recognized the value of them. And some of those entities are trying to use our system to their benefit or to our detriment. Just like with the trademark system, we're seeing some activity that I want to be on top of. I want to make sure that we're keeping our system strong, that we're learning from the trademark side of the house with the Trademark Modernization Act with the sanctions, to make sure that we protect the sanctity of our system.

Given the importance of design patents, I also have to say that it's really important that the design patent community, the innovators, are inclusive, that we reach out to underserved communities, that we have all hands on deck, and we need all of you involved in that as well. From the PTO side, we are working to connect the dots. We have a lot of great collateral we've developed over the years, and we need to make sure that we get those to people, that we meet people where they are, to incentivize them at a young age to think big, and to make sure that we're protecting everything that they create. And we need everyone involved in that. In terms of access, there's one thing that I've already started working on this first week, and that's just expanding pro bono. And I'd like to just say a couple of words about that. Because a lot of people don't necessarily have the knowledge on what to do if you've come up with a great design, and then even if they have the knowledge and know that it can be protected, they don't have the resources for that.

So, it's really important to me that we provide those resources. Right now, the USPTO has 21 regional pro bono programs. Those are collaborations with other programs, and those 21 programs cover the entire country, including Alaska and Hawaii, and every other state. We also collaborate with law schools and have programs in law schools, and those programs have been very successful at serving underserved communities. And I just want to read you a few stats on that. So last year, our 21 regional pro bono programs served users and found that 30% of the identified users identified as African American or Black. 30%. To me, that's an astonishing number. 14% identified as Hispanic, 5.6% identified as being Asian or Pacific Islander, and 1.5% identified as being Native American. Now, if only we could see those numbers in every other part of our country, that would be just phenomenal.

And with only 13% of inventors named on U.S. patents being women, 41% of those receiving assistance through the patent pro bono programs identified as female. 41%. As I think you know, the number of female innovators and inventors in the design patent space is higher than on the utility patent space. So, only imagine how many people we're serving, how many women we're serving, when it comes to design patents. The patent pro bono program has already matched more than 3,400 inventors and small businesses with patent practitioners. And they had helped them file over 2,000 patent applications, donating 84,000 hours of their time. And as I'm sure you've heard, we have two new patent programs, one for the PTAB and one for the TTAB. I love hearing numbers like that, but we have to do much, much better on all of that.

Although those numbers are impressive, and I'm so excited for all the great work that's been done, we need to do so much more. And so, one thing that I would love to encourage all of you to do, whether you work for a law firm or a company, is to think about pro bono more broadly. If you think about pro bono, obviously, it's a Latin word, and it means for the public good, and I think we've come to think about pro bono only in terms of serving individuals who lack resources. But I would encourage everyone to think about it more broadly. For the public good means creating more innovation in this country, creating jobs, creating businesses. So, as you think about your pro bono objectives as an organization, as an individual, and how you spend your time, I hope that you will focus and think about opportunities to get involved.

And we will do our part to make sure that we are providing you with the tools, with the access, so that you can donate more time, donate more resources to pro bono. I was in an event this weekend and ran into Representative Ro Khanna. And this may be a quote from him, or he may have been quoting from somebody else, I don't recall, but it was so powerful. The quote is, "technology rights are the new civil rights." Think about how powerful and impactful that is. Technology rights are the new civil rights. If we can incentivize people to innovate, if we can incentivize people to build businesses, then when it comes to civil rights, we will raise everyone. And if you think about pro bono, hopefully there'll be less need for housing for underserved, for all of the programs we have right now that solve the problem.

I would rather focus on the front end, and let's not create the problem. Let's make everybody rise through incentivizing innovation, and protecting it, and helping them bring that innovation to impact. So, I was going to do the announcement now, but I've already scooped myself on that. I will say that in addition to the articles of manufacture the other thing we're going to roll out, and this should be posted and rolled out tomorrow, is more transparency on Director review. I think the PTO did such a great job adapting to Arthrex so quickly under Drew Hirshfeld's leadership. I was so impressed that sometimes you take things all the way through rule making, but sometimes you just need to act fast. And I just appreciate that flexibility that the PTO was able to do that. So, what we've done this week is we've worked together as a group with the PTAB and with others, and with Drew Hirshfeld, to make sure that the information on our website reflects all the information that you should have about design review.

So, you will see a lot more information. There's going to be additional information. Some of it will be just putting in one place all the information you need. But I had additional thoughts on making sure that people prioritize what they're raising for Director review and that they're really the types of issues that I should be taking on Director review. So, you will see some encouragement in what we post as well. And then I also want to let you know that we are going to formalize the process for Director review. I know that there have been questions about that. Although I love the fact that the PTO can act nimbly, and I think that that should continue, because sometimes we need to just address something quickly. Overall, I think the process of formalizing things, getting stakeholder input, making sure that the decisions we make really get back to first principles, that we in every decision we make we're not just trying to balance interest.

We're thinking really hard about what is it that is going to incentivize innovation. What is it that's going to serve our end goal of incentivizing innovation, protecting it, and then getting innovation to impact. So, with that, I want to thank all of you for being here today. It's so great that you have this community that meets every year. I think there's over 500 of you, at least that are on this video. Thanks for joining us. Thanks for working hand in hand with our patent examiners and the business unit with Karen's leadership. I appreciate that you're here, and I hope you have a fantastic day. Thank you.