After over a year and a half at the helm of the U.S. Patent and Trademark Office (USPTO), Director Kathi Vidal has made significant and lasting impacts on the Patent Trial and Appeal Board (PTAB) through a variety of different actions, including Director Reviews, issuing guidance, designating additional cases as precedential, issuing sanctions sua sponte, and returning institution rates to 2016 levels. All signs point to continuation of additional changes under her continued leadership, based on various proposed rulemaking announcements and the USPTO’s current Strategic Plan.
Perhaps the largest impact that Director Vidal has had upon the PTAB is has been via Director Reviews. The U.S. Supreme Court’s decision in United States v. Arthrex, Inc., 141 S.Ct. 1970 (2021), mandated Director Reviews to correct what the case deemed procedural defects in the way that administrative patent judges are appointed to the PTAB. Although the interim Director Review procedure was put in place before Director Vidal was in office, prior to her tenure only five out of the 189 requests filed were granted, according to PTAB-published statistics. According to those same statistics, under Director Vidal a total of 41 Director Reviews have been issued as of this writing, with most being issued sua sponte by the Director and just a handful of them resulting from parties’ requests for Director Review. Thus, Director Vidal has taken seriously the mandate of the Arthrex case and has been a very active in clarifying PTAB procedures and precedent via sua sponte Director Reviews.
