INTERVIEW
Sea change
WIPR Diversity sat down with Kathi Vidal, director of the US Patent and Trademark Office, to talk about her bold plans to encourage more women into the field of patents, expand the bar and make the agency a great place to work.
Kathi Vidal
You have always been a proponent of diversity and inclusion. What drove you to make that an area of focus?
In the early ’90s, I was part of a team that founded a women’s legal conference before women’s conferences had taken off as a concept. During our first event, I spoke about what was to become the America Invents Act. After I stepped down from the stage, one of the women in the audience shared with me that she had never heard me speak in such a lively and passionate way.
That was an “aha” moment for me. I realised that during engineering school and while working as an engineer for five years—both in very male-dominated environments—I had unconsciously adapted my behaviour. That moment made me realise the value of diversity and what it was truly like to feel included as my most authentic self. For me, it was not that others were asking me to be inauthentic, it was that I had adapted without knowing it.
Since that time, diversity and inclusion (D&I), as well as authenticity have been keen focuses of mine.
Saurabh Vishnubhakat, professor at Texas A&M University, suggested in his study “Gender Diversity in the Patent Bar” that only 18% of patent practitioners were women. How do you plan to address this shortfall?
We have two key initiatives. First, we need to make sure we have a diverse pipeline. We are working with the National Inventors Hall of Fame on Camp Invention and other programming for grade-school children. We have trained over 250,000 children so far this year. And we are training teachers on how to teach innovation and IP to our teens and tweens. I’m confident that with early introduction and with reinforcement, we will broaden the universe of those interested in science, technology, maths and engineering, and then IP. Even after a week of camp, the children were asking the kinds of questions I hear from entrepreneurs, such as: “how can I protect my merchandise on the internet?”, and “exactly how much money is it going to cost me to get a patent?”
The other key initiative is to reduce any unnecessary barriers. To ensure high-quality, inclusive representation for all US innovators, we plan to expand the admission criteria for our patent bar to encourage broader participation. We are considering whether a separate design patent practitioner bar would be beneficial to the public and the US Patent and Trademark Office (USPTO). Not only could such a bar better align the bar requirements with the subject matter, it would open up participation.
Lastly, to ensure quality representation in Patent Trial and Appeal Board (PTAB) proceedings without creating undue restrictions or barriers to entry for practitioners wishing to appear before the PTAB, we are seeking public input on whether the PTAB’s rules and procedures should be modified to increase opportunities for practitioners.
In addition to expanding the bar, we are considering improvements to training and development programmes, such as the PTAB’s Legal Experience and Advancement Program (LEAP), aimed at expanding opportunities for less experienced practitioners to appear before the PTAB. We also just added four more schools to our Law School Clinic Certification Program, giving more law students exposure to patenting and the IP ecosystem. And we are working as a catalyst for more IP courses, programmes, and degrees across the nation.
“We are seeking public input on whether the PTAB’s rules and procedures should be modified to increase opportunities for practitioners.”
A 2019 report (“Progress and Potential“) by the USPTO revealed that only 12% of all inventor-patentees on US patents were women. This figure is reflected across the globe, with women inventors accounting for just under 13% of all patent applications, according to the UK Intellectual Property Office. How do you plan to address this shortfall?
There is much we are doing and will do. Shortly after I came on board at the USPTO, we doubled down on our pro bono efforts, including increasing the funding and support for the 21 patent pro bono organisations that cover the entire US. The data we have collected shows that when we meet people where they are by increasing the availability of free legal advice and services, we vastly expand participation in the innovation ecosystem. Of those availing themselves of patent pro bono services, 41% identified as women, 30% as African American, 14% as Hispanic, 5.6% as Asian American or Pacific Islander, and 1.5% as Native American.
We also know that when we provide additional support to applicants, we increase the likelihood they will receive a patent. Our additional pro-se assistance increases patent rates by 5%, and women are 11% more likely than men to benefit from that assistance. In view of that data, and in view of data suggesting that more women than men abandon their applications upon receiving a ‘rejection’ notice, we are rethinking how we support all applicants.
We will also soon announce a first-time filer programme targeted at expediting examination for the patent applications of those filing with us for the first time, and providing them with additional training on filing basics at no additional charge. And all of this is just the beginning. We are going to take an all-of-government approach to our Council for Inclusive Innovation, including engaging deeply in public-private partnerships, to move the needle in a meaningful way.
What D&I initiatives have you endorsed and helped develop?
I have always worked to lift others, and in an equitable way. I’m an optimist and believe that everyone, for the most part, is well-intentioned. The initiatives I have helped develop relate to internal processes—to helping my colleagues and others in the profession recognise ways in which they can be part of the solution.
For example, as a junior lawyer, I started the practice of hosting recruiting dinners for Federal Circuit clerks. That was in the late ’90s. Other firms followed suit. My thinking was that inviting all clerks into the recruiting process would equalise the process, as opposed to clerk hiring being skewed more toward personal relationships. When in firm leadership, I added to the partner review form a question about what partners were doing to advance D&I. This was before those types of questions were the norm. And I changed the associate review process to add the leadership and support skills that would shape a stronger, more inclusive firm.
I also started nextgenlawyers.com to record and promote court orders to encourage and/or incentivise opportunities for junior lawyers. My thought was that those opportunities would keep more associates, including diverse ones, engaged in the law and would give them early experiences to build on for a successful career. I even consulted on the PTAB’s LEAP before coming to the USPTO, speaking at the inaugural event and one-year anniversary.
While leading the USPTO these past few months, I’ve not only worked to expand the bar, I’ve held many listening sessions, both with stakeholders and within the agency. The USPTO has brought on a lead diversity, equity, inclusion, and accessibility (DEIA) advisor, Caren Ulrich Stacy, an innovator in the field of workforce opportunity and accessibility who has brought about transformational change in the legal profession.
“Some of our most important achievements are the effects we have had on the lives of others in ways we may never hear about.”
We are forming our first-ever DEIA committee and hiring key DEIA positions that have never existed at the USPTO. Together with Derrick Brent, deputy under secretary of commerce for intellectual property and deputy director of the USPTO; Bismarck Myrick, director of the USPTO’s Office of Equal Employment Opportunity and Diversity; and our entire leadership team, I am working to make the agency more inclusive and a place of opportunity for everyone.
What is the most difficult part of your job?
Time. Though I see all challenges as opportunities for key feedback or positive change, like many others within the USPTO and our stakeholders, I’d like to see that change happen as soon as possible.
What is your biggest achievement?
I think some of our most important achievements are the effects we have had on the lives of others in ways we may never hear about.
What advice would you give to those looking to pursue a similar career path?
First, you have to be good at what you do. There is no substitute for hard work and knowing the substance. When I used to take on new cases, I would go to the Stanford bookstore and buy a book on the technology. And when I was a junior associate and lawyers forwarded what we called a ‘QOTD’ (question of the day), I would look up the answers both for my benefit and to help my colleagues. I also taught patent law scholar and author Donald Chisum’s patent law class when he was on sabbatical. I was a fourth-year associate, and that opportunity was the best way to learn as much as I could about patent law while giving me more ‘on-my-feet’ experience than I would have otherwise had. I then spoke on any topic I was asked to speak on, some of which I was completely unfamiliar with, using the talk as a forcing function to expand my expertise. I’m not suggesting that is the path for everyone. That was just my path.
Beyond getting good at what you do, do what you have a passion to do. I love what I do, and I love helping others. Because that gives me energy, I work harder and do more (which, in turn, makes me more qualified at what I do).
Lastly, ask for opportunities. Find an authentic way to ask that fits your personality. And practice asking, so when you do the ‘big ask’, it won’t feel so big.
Who or what inspires you?
I would have to say two things: authentic leadership and people who have a passion for making an impact and do all they can to make it happen. When I do not do something as well as I would have liked, I reflect on the moment when Supreme Court Justice Ruth Bader Ginsburg, in response to criticism, owned it and moved forward, noting, “that was not my finest moment”. I am also inspired by the numerous emails I receive from people within the USPTO who are advancing their passions for more robust and reliable IP protection, a sense of community, connectedness, and D&I, among other things. I’m inspired by the work they are doing and am hoping to collaborate to make the USPTO the best place to work, period.
Image: Shutterstock / irabel8