In the closing weeks of 2024, USPTO Director Kathi Vidal announced her departure in a November LinkedIn post, stating that she would leave the Office during the second week of December to rejoin the partnership of Chicago-based law firm Winston & Strawn LLP. Now, as incumbent President Trump’s January inauguration approaches, many practitioners are wondering who will step into former Director Vidal’s shoes and when, and what to expect from the new Trump administration.
Vidal’s tenure was marked by significant changes to the USPTO, including new initiatives to support inclusive innovation, sweeping changes to the USPTO’s director review process after United States v. Arthrex, Inc., 141 S.Ct. 1970 (2021), and new rules for the discretionary denial of AIA post-grant petitions after Apple Inc. v. Fintiv Inc., IPR2020-00019 (PTAB 2020). It also brought attempts to curtail the rights of patent owners in certain respects, including through a May 2024 notice of proposed rulemaking (now withdrawn) attempting to impose additional requirements on terminal disclaimers, which caused some practitioners to view Vidal as more “anti-patent” than her predecessors.
Despite Vidal’s departure, we are not likely to have a new USPTO Director very soon. Historically, the process to nominate and confirm the Director has been relatively slow, and not a top priority for the incoming administration. Director Vidal did not receive her nomination from President Biden until October 21, 2021—nine months after Biden took office—and was not confirmed by the United States Senate until April 2022. Perhaps more relevant, Trump’s appointed Director, Andrei Iancu (now a partner at Sullivan & Cromwell LLP), was not nominated until September 5, 2017; his nomination was confirmed by the Senate on February 5, 2018.
Two directors were confirmed under President Obama—the first, David J. Kappos, was nominated relatively quickly in June 2009, and confirmed in August. After Kappos’ resignation on February 1, 2013, Teresa Stanek Rea served as Acting Director until January 12, 2014. The next director, Michelle K. Lee, was not nominated until November 12, 2014; she was confirmed on December 17.
This recent history suggests that a new director nomination will take months or more. This is, of course, subject to the priorities and organization of the incoming Trump administration (which appears to be moving fairly rapidly). Practitioners (and their clients) will need to wait a bit longer to learn how the incoming administration will upend or preserve Director Vidal’s legacy initiatives.
