Remarks by USPTO Director Kathi Vidal at AIPLA Spring Meeting

Remarks as delivered

Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO

American Intellectual Property Law Association Spring Meeting Opening Plenary Address

May 10, 2023


Thank you for the kind introduction. On behalf of my 13,000 colleagues at the USPTO I truly appreciate AIPLA’s continued dedication to the nation's innovators and entrepreneurs.

It's great that you're holding this meeting here in Seattle. This Emerald City ranks highly for creation and innovation in our nation. The World Economic Forum recently ranked Seattle as the 10th leading technology city in the world, and the ninth when measured in talent concentration. That's very high praise for a city that is not even ranked as being one of the 100 largest cities in the world. Seattle also stands out as being a city with a high concentration of women patentees.

This city is a great model for how one innovation and entrepreneurship hub can create whole new industries and jobs across our great nation — how one hub can support new market entrants and contribute to the economic prosperity of all.

Within the U.S. federal government, we are looking for ways to replicate Seattle's success and spread it into regions of the country where more people and more communities can benefit from the innovation economy.

As we know, IP-intensive industries like manufacturing and information technology accounted for 41% of all U.S. domestic economic activity in 2018. That amounted to $7.8 trillion in GDP. Those industries employed 44% of all U.S. workers, or 63 million jobs generated by intellectual property across our great nation.

If we can create more innovation hubs like Seattle across our nation, then we will create better-paying and more secure jobs for all while keeping the United States at the forefront of innovation and economic competitiveness.

That is why in Washington, D.C., I am co-chair of the Economic Development Administration's National Advisory Council on Innovation and Entrepreneurship — or NACIE. NACIE is moving forward with a plan to invest $500 million this year alone in creating 20 innovation and technology hubs throughout the country, like the one here in Seattle. And there is an additional $9.5 billion authorized in the CHIPS and Science Act for EDA’s Tech Hub programs over the next five years.

This is one of the biggest initiatives in our country's history when it comes to broadening participation in the innovation economy. The EDA Tech Hubs program only scratches the surface of the investment in innovation and entrepreneurship that we have made with the CHIPS and Science Act and the Inflation Reduction Act. These will go a long way to bring innovation-to-impact for our country.

The USPTO is leaning in everywhere we can to ensure that as we build, we build with strong intellectual property, and that we build for a more sustainable future.

As you know, our mission at the USPTO is to drive U.S. innovation, inclusive capitalism, and global competitiveness — for the benefit of all Americans. We do this by providing robust and reliable intellectual property protection.

Guided by our new strategic plan, we are working to accelerate the creativity that drives U.S. innovation, bolster the use of that innovation in key and emerging technologies, and bring more people into the innovation ecosystem. If we can expand the number of inventors four-fold, we can increase the size of our economy by $1 trillion.

I just celebrated my first-year anniversary as director of the USPTO; and what a year it was with all of you and with all of our colleagues. When I started at the agency, my first priority was to listen to you, listen to innovators, and listen to business owners and IP professionals on how we can make our innovation ecosystem stronger — how we can use it to bring more people across our nation into the innovation ecosystem.

As you may have heard by now, this second year is the year of action. We are taking everything we've heard in meetings, public listening sessions, and fireside chats, and we are moving proposals to address major challenges.

I'd like to share some of what we are moving.

Within the USPTO, we are working to shore up our IP ecosystem. In the past year, we've issued five notices of proposed rulemakings. A few weeks ago, we issued an Advanced Notice of Proposed Rulemaking [ARPRM] for the Patent Trial and Appeal Board [PTAB]. We have invited input from the public on proposed changes to discretionary institution of trials, word limits in petitions, and settlement practices under the America Invents Act [AIA].

I want to put the PTAB ANPRM into perspective: It is just one thing that we are working on across government.

  • We are working on AI and standards policy.
  • We're working to strengthen IP protections and enforcement across the globe, making sure the money we invest in innovation results in U.S. jobs and educating our nation for a more successful future.
  • We are working on other very important issues:
    • The robustness and reliability of the patents we issue;
    • Making the patent record clearer;
    • Patent eligibility;
    • PTAB’s motion-to-amend practice;
    • Director review;
    • Enhancing routing, training, and search for examiners;
    • Expanding the bars;
    • Addressing trademark fraud;
    • And I can go on and on.

We know that there are users of our IP system who provide for private gain at the expense of the interests of our country. I've seen this from both sides of the “v.” From both the plaintiff and defendant side. We've heard it directly from you in terms of your experiences. Know that for everything we do we are solving for that: To put the interests of our country first.

It is how we approached the SEP [Standard Essential Patent] policy statement. We heard from advocates of the 2021 draft statement and those who wanted the 2019 statement to stay in place. The public commentary was strong and sometimes fierce on both sides.

But when we got into small meeting rooms and focused not just on what was good for one industry or one company but on what was best for the country, people set aside their own interests. They helped us shape something that works for everyone.

We need that same focus and attention on everything that we do.

We welcome your full advocacy on behalf of your companies and your industries so we can pressure-test what we're doing.

But at the end of the day, we will advance policy that best supports our country as a whole.

Now let me make three comments on the [PTAB] ANPRM issued on April 23rd because it's garnered a ton of attention.

First, recognize that it is an advance notice of proposed rulemaking. I did not know what the “ANPRM” term meant before I came into government service. So, I'll share a little bit with you.

Our colleagues at the Labor Department nailed it when they said they use an advance notice of proposed rulemaking when they “need more information or data to determine whether a rule is needed, what regulation to develop, or when they want ideas or alternative suggestions dealing with a specific issue or topic.”

The [PTAB] ANPRM does not contain proposed rules. That would be too premature. It contains ideas on which we really need your input in shaping what will come next, which is the NPRM, or the notice of proposed rulemaking. Again, our colleagues at the Labor Department nailed it when they said, a proposed rule — and that's what's coming next — “lays out how we plan to address a specific problem and request comments on our plan. It consists of proposed regulatory texts and a preamble.”

After the NPRM is published in the federal register and after public meetings, if they're held, that’s when they can proceed to the Final Rule.

My second point on the ANPRM is this: Please read it. I know it's long, but that’s a reflection of the ideas that we had after reading the 822 comments from all of you in response to our October 2020 request for comments on discretionary denials; it’s after we heard from you in various meetings. We wanted to make sure we included enough in there so that we could seek your feedback and then shape and create rules.

Some of what is being said about the ANPRM is inaccurate. It's not actually what the ANPRM says. So, it's important to focus on the words.

If you want another authoritative source on the ANPRM, I have the opportunity to answer questions for the record from the [April 23, 2023, oversight hearing of the] IP subcommittee in the House of Representatives. The answers to those questions will give me an opportunity to explain [our intentions] in more detail.

Third, if you see sections you believe could be shaped to move PTAB practice further away from the USPTO’s mission and vision — or the intent of the AIA — then know that that is not our intent. There is enough in there to make sure we shape the rules in the right way.

We will shape the actual rules for the NPRM with your feedback, which is due on June 20. We intend to stick to that deadline. In the past, we've extended deadlines. But now that we're in the rulemaking process, we need to move things through swiftly, so please abide by the June 20 deadline. If you miss that deadline, you’ll have a separate window to provide input on the NPRM.

On every topic on which we solicit input, we review closely every comment we receive. And, as I've said over and over again, not only does the team making the decisions with me read the comments, I read them as well, and I re-read anything I consider to be a dissenting view to make sure we are making the best decisions.

It is critical that we hear from everyone that our IP system supports to ensure that all of our decisions are based on evidence and real experience. Although we may ask questions in our requests for comments that may relate to things you've seen in the public discourse, know that we are not making decisions based on public discourse. Some of those questions are meant to solicit feedback from you so that we can stand behind our current practices. Whether or not we make changes, we want those decisions to be based on evidence, and on your experiences.

I know that all of this activity at the USPTO puts an extra burden on you individually, on your company, and on AIPLA. So, I want to thank you for stepping up and providing comments. These are important issues that we really need to solve together.

The core to all of our work at the USPTO is our focus on the quality of the intellectual property protections we issue and register.

We are moving forward with initiatives to enhance prosecution and ensure that when we issue a patent, the holder has the confidence they need to make long-term investment decisions and bring innovation to market.

We are currently reviewing the submissions from a request for comments we issued on ensuring the robustness and reliability of patent rights. I've already gotten a full debriefing on it, and I’m going back and reading individual comments. We expect to be issuing proposed rules for comment to refine our examination policies and procedures to further enhance quality.

And as I mentioned, we're going to double down on things that are working, and we're going to make surgical and strategic changes where we believe we can do better.

We also appreciate our alliance with the AIPLA on initiating clarity-impact training with our examiners to improve the written prosecution record. I look forward to rolling that out soon, and we appreciate the collaboration.

On the Trademarks side, we are in full implementation with the Trademarks Modernization Act [TMA] to clear out dead and fraudulent trademark applications so that businesses can have the confidence in the safety of their brands.

We recently discovered what appears to be a new scam, an online secondary market for trafficking U.S. trademark registrations. The registrations on many of these auction sites are obtained through the use of so-called “specimen farms.” These are virtual storefronts that make it look like an applicant's goods are for sale when they really are not. These sites are bogus. They’re nonfunctional.

We are now attacking the fraudulent registrations that appear on the sites through director-initiated reexamination proceedings under the TMA.

While the TMA is a powerful tool for targeted and one-off cases, we've also been busy administering other protections of the register that look at the system as a whole.

We've issued 162 Orders for Sanctions that have terminated nearly 19,000 invalid trademark applications and have been filed by scammers over the past five years; and more than 350 accounts that have been suspended for improper submissions. Every day, the dedicated team at the USPTO is working to ensure our IP system is the strongest and most reliable in the world.

I want to mention a few other USPTO initiatives that we are keenly focused on.

One is to meet people where they are — and to help them through the innovation ecosystem. We need a strong Patent Pro Bono program. The USPTO doubled down on our Patent Pro Bono programs over the last 12 months. And we've seen incredible results.

I know I've quoted these statistics in the past, but they're worth repeating: While only 13% of U.S. inventors on patents are women, when we look at the data, 43% of those who benefit from the Patent Pro Bono program are women; 35% are African American; 14% are Hispanic American; 5.6% are Asian American; 1.5% are Native American; and between 8% and 9% are U.S. veterans.

This is how we reach people where they are. This is how we expand our economy. We create new jobs. We bring more people into the innovation ecosystem.

It is people like you who selflessly dedicate your time to helping people who have great ideas, who want to create jobs, but need the help of a lawyer. You help them with the questions that they have about our IP system.

In conclusion, I am proud of our work over this past year. I am excited for the great progress we will make together in the year to come. None of it would be possible without your engagement and the continued engagement of our phenomenal stakeholders.

Our success is built upon daily personal interactions between our IP team and our technology experts, and the nation’s inventors and entrepreneurs, and those who represent them.

We're doing everything we can to make our innovation system the best that it can be.

We appreciate everything the members of AIPLA do to help us achieve that goal. I look forward to working with you in the weeks ahead.

Thank you for having me.