[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]






 
           OVERSIGHT OF THE U.S. PATENT AND TRADEMARK OFFICE

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        THURSDAY, APRIL 27, 2023

                               __________

                           Serial No. 118-17

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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               Available via: http://judiciary.house.gov
               
                               ______

               U.S. GOVERNMENT PUBLISHING OFFICE 
           52-123        WASHINGTON : 2023
  
               
               
               
               
               
                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
KEN BUCK, Colorado                       Member
MATT GAETZ, Florida                  ZOE LOFGREN, California
MIKE JOHNSON, Louisiana              SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
TOM McCLINTOCK, California           HENRY C. ``HANK'' JOHNSON, Jr., 
TOM TIFFANY, Wisconsin                   Georgia
THOMAS MASSIE, Kentucky              ADAM SCHIFF, California
CHIP ROY, Texas                      DAVID N. CICILLINE, Rhode Island
DAN BISHOP, North Carolina           ERIC SWALWELL, California
VICTORIA SPARTZ, Indiana             TED LIEU, California
SCOTT FITZGERALD, Wisconsin          PRAMILA JAYAPAL, Washington
CLIFF BENTZ, Oregon                  J. LUIS CORREA, California
BEN CLINE, Virginia                  MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas                  JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey            LUCY McBATH, Georgia
TROY NEHLS, Texas                    MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama                 VERONICA ESCOBAR, Texas
KEVIN KILEY, California              DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming             CORI BUSH, Missouri
NATHANIEL MORAN, Texas               GLENN IVEY, Maryland
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina

                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

                    DARRELL ISSA, California, Chair

THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr., 
SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member
CLIFF BENTZ, Oregon                  TED LIEU, California
BEN CLINE, Virginia                  JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  DEBORAH ROSS, North Carolina
KEVIN KILEY, California              ADAM SCHIFF, California
NATHANIEL MORAN, Texas               ZOE LOFGREN, California
LAUREL LEE, Florida                  MADELEINE DEAN, Pennsylvania
RUSSELL FRY, South Carolina          GLENN IVEY, Maryland

               CHRISTOPHER HIXON, Majority Staff Director
          AMY RUTKIN, Minority Staff Director & Chief of Staff
                            C O N T E N T S

                              ----------                              

                        Thursday, April 27, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Darrell Issa, Chair of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  California.....................................................     1
The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     3

                                WITNESS

The Honorable Kathi Vidal, Undersecretary of Commerce and 
  Director, U.S. Patent and Trademark Office
  Oral Testimony.................................................     5
  Prepared Testimony.............................................     7

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted by the Subcommittee on Courts, 
  Intellectual Property, and the Internet, for the record are 
  listed below...................................................    27

Material submitted by the Honorable Darrell Issa, Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of California, for the record
    A letter from the Foundation of Human Rights in Cuba (FHRC), 
        Apr. 21, 2023
    A letter from the Cuban Studies Institute, Apr. 21, 2023
    An article entitled, ``Law must protect what padlocks 
        cannot,'' Jun. 9, 2004, Opinion | Sun Herald
    A letter from Jaime Suchlicki, Director/Emeritus Professor, 
        Cuban Studies Institute, Apr. 21, 2023
    Statement from Bruce A. Lehman, Former Secretary, Commerce 
        and Commissioner of Patents and Trademarks, Mar. 3, 2010
    Statement from John K. Veroneau, Partner, Covington & 
        Burling, LLP, Mar. 3, 2010
Material submitted by the Honorable Thomas Massie, a Member of 
  the Subcommittee on Courts, Intellectual Property, and the 
  Internet from the State of Kentucky, for the record
    An article entitled, ``No End in Sight for Rule 36 Racket at 
        Federal Circuit,'' Jan. 29, 2019, IPWatchdog
    A fact sheet entitled, ``Big Tech Abuses the Patent Trial and 
        Appeal Board,'' Jan. 31, 2023, Docket Navigator

                                APPENDIX

Material submitted by the Honorable Darrell Issa, Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of California, for the record
    A letter from the ACT  |e App Association, Alliance for 
        Automotive Innovation, Bank Policy Institute, Computer 
        and Communications Industry Association, Consumer 
        Technology Association, High Tech Inventors Alliance, 
        National Retail Federation, Public Innovation Project, 
        Public Interest Patent Law Institute, R Street Institute, 
        Software & Information Industry Association, The Clearing 
        House (TCHPA), United for Patent Reform, and the US 
        Manufacturers Association for Development and Enterprise 
        (US MADE), Apr. 26, 2023
    A letter from the Public Citizen, Public Innovation Project, 
        Public Interest Patent Law Institute, Public Interest 
        Research Group, R Street Institute, Michigan United, and 
        Michigan People's Campaign, Apr. 26, 2023
    A statement from Quality Patents Coalition, Apr. 27, 2023
    A letter from Unified Patents, LLC, May 1, 2023

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions to the Honorable Kathi Vidal, Undersecretary of 
  Commerce and Director, U.S. Patent and Trademark Office, 
  submitted by the Honorable Darrell Issa, Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of California; the Honorable Laurel Lee, a 
  Members of the Subcommittee on Courts, Intellectual Property, 
  and the Internet from the State of Florida; the Honorable 
  Nathaniel Moran, a Members of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  Texas; the Honorable Henry C. ``Hank'' Johnson, Ranking Member 
  of the Subcommittee on Courts, Intellectual Property, and the 
  Internet from the State of Georgia; and the Honorable Deborah 
  Ross, a Members of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of North Carolina, 
  for the record
    No response was received at the time of publication.


           OVERSIGHT OF THE U.S. PATENT AND TRADEMARK OFFICE

                              ----------                              


                        Thursday, April 27, 2023

                        House of Representatives

           Subcommittee on Courts, Intellectual Property, and

                              the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to notice, at 9:08 a.m., in 
room 2141, Rayburn House Office Building, the Hon. Darrell Issa 
[Chair of the Subcommittee] presiding.
    Present: Representatives Issa, Massie, Fitzgerald, Cline, 
Kiley, Moran, Lee, Fry, Johnson, Lofgren, and Ivey.
    Mr. Issa. The Subcommittee will come to order.
    Without objection, the Chair is authorized to declare a 
recess at any time.
    We welcome everyone here today to today's hearing on 
``Oversight of the United States Patent and Trademark Office.''
    I will now recognize myself for a short opening statement.
    First, although I'll welcome you officially later--welcome 
to the Committee, and welcome to the work that you've already 
had under our time, 100 days, but much longer to do. This 
Committee, like no other, is interested in seeing and hearing 
what you have to say about what you're doing today and what, by 
definition, we will have to do in the future, in areas like AI 
and the development of what we might consider to be patentable 
products that, today, would be invented by men and women and, 
tomorrow, certainly will be conceived of and refined by 
machines.
    The United States Patent and Trademark Office plays a 
critical role in the Nation's ability to innovate and grow. 
That has been true since our founding. The first patent, which 
I'm honored to have a copy of in my office, is signed by none 
other than George Washington and Thomas Jefferson. In those 
days, the first five patents were reviewed, in fact, by the 
Secretary and the President.
    Last year alone--and I'm sure that the Director will have 
numbers for us that are accurate and much more timely than 
mine--but, last year, over half a million patents were applied 
for and
certainly over 300,000, again, were granted. That means that 
every
2-3 years we are currently adding a million patents.
    To put that in perspective, my first patent, not that long 
ago by my perspective, was in the four-millions. During the 
last administration, I was honored to be at Mount Vernon for, 
in fact, the 10-millionth patent, granted to Raytheon 
Corporation. We are certainly past 11 million as we speak. More 
importantly, it means that more than a third and nearly a half 
of all patents ever granted are currently valid and 
enforceable--an amazing number, an amazing statement to current 
innovation.
    It also means that the Patent and Trademark Office has a 
job which is harder than ever before. Everyone can understand 
that innovation is going very quickly, but we also understand 
that overlapping innovation is greater than it ever has been 
before. What is overlapping innovation? Overlapping innovation 
is the fact that, although each patent individually must have a 
piece of uniqueness, many, many patents, in many disciplines, 
speak to the same basic product and to similar aspects of it. 
That makes the job of examiners harder than ever.
    In addition to that, because of artificial intelligence in 
its early days, people are now putting together patents which 
have hundreds or thousands of very similar claims, designed 
with the assistance of computers, to bracket the invention, 
meaning patents may have one independent claim and up to 
thousands--I repeat--thousands of dependent claims.
    That makes it very difficult for any examiner, or even any 
examiner with the aid of a computer, to really see and be 
accurate. Now, more than ever, the reexamination process, in 
light of the scrutiny that comes after the granting of a patent 
against overlapping patents, is essential. That is not without 
conflict.
    Obviously, one of the things that this office has, and the 
Director's office has is a responsibility to provide the 
greatest degree of patent certainty on the day of issue and, 
if, in fact, it is challenged through ex parte or inter parte 
reexamination, to, in a timely fashion, again reinstate that 
patent certainty.
    That is the most important thing I believe we will discuss 
here today. It is the goal of this Committee and of the Under 
Secretary.
    We have had countless meetings over the years to try to 
refine the Patent and Trademark Office's mission. We did so 
nearly a decade ago successfully on a bipartisan, bicameral 
basis. We have now gone a decade. We have seen some of the best 
fruits of that work. We have also seen some of the challenges 
that continue.
    Although it is not within her purview, this Committee does 
and intends to resolve the problem of selectively finding 
places to go to get your patent--or, sorry--yes, to get your 
patent enforced. The kind of shopping that's happened in East 
Texas and West Texas even has gained the direct attention of 
the U.S. Supreme Court, and that should not be necessary. This 
Committee has the jurisdiction and the authority to find ways 
to stem that trend.
    We also have the situation with the United States ITC, and 
the ITC also represents a lack of patent certainty for the 
patent holder and for people who are practicing arts that do 
not infringe patents.
    So, as we speak here today, we do not claim to have 
jurisdiction over every Article III judge's decision. We do not 
claim to have jurisdiction over the ITC. In fact, under the 
act, 10 years ago, we gave rulemaking authority to the Patent 
and Trademark Office.
    It is our goal to make sure that the Patent and Trademark 
Office is able to produce and make those adjustments as facts 
change, while at the same time recognizing that the role of 
Congress is essential in actually creating the underlying 
statute.
    For that reason, I want to thank Director Vidal for 
appearing here today and, on a separate note, repeatedly being 
available to both the Chair and Ranking Member over the last 
several years for the kinds of consultation that is essential.
    That does not mean that we will not have things to discuss 
here today that represent disagreements between this side of 
the dais and that side of the dais. I think it is clear, we 
cannot do it alone from Congress, and you cannot do it alone 
from your role.
    So, I look forward to the discussion today, those to 
follow.
    With that, I would recognize the Ranking Member for his 
opening statement.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    Director Vidal, thank you for being with us today, and I 
look forward to hearing your testimony on the status of your 
13,000-person agency--perhaps on the smaller side by government 
standards but with outsized importance to the direction of this 
country.
    For example, employees of your office get to decide who 
gets a patent, who gets a trademark registered, and who gets 
their patent or trademark taken away upon further review. This 
is an immense amount of power for a Federal agency to have. As 
a result, the job that you hold, which is to run this agency 
responsibly, to try to make the decisions consistent and fair, 
with so many individual decisionmakers, is a unique challenge.
    While there are many topics that we could discuss, in the 
interest of time, I will focus on two that have been of special 
concern to me.
    First, it is now well-known that there is an ongoing 
problem with fraudulent trademark applications being filed and 
approved. The presence of these fraudulent marks complicates 
the path for legitimate businesses to file for their own 
trademarks, ultimately hurting consumers and our economy.
    I was proud to lead the effort to pass the Trademark 
Modernization Act of 2020. This act created new proceedings at 
the office to allow for a quicker and less expensive challenge 
to applications for trademarks that had not been used. This 
provides a way to target some of these fraudulent applications. 
While there are indications that it's been successful, I'm 
afraid it might not be enough.
    Likewise, although the office has put in place new 
requirements on who must sign applications, there are signs 
that this is being manipulated also. It seems clear that the 
office needs to find more ways to be vigilant on the front end 
to better spot the tell-tale signs of false information.
    Second, I have concerns about the Patent Trial and Appeal 
Board, or PTAB, being able to operate as a judicial body free 
from political interference. Congress's original design for the 
board was for its decisions to be final and nonreviewable by 
Executive-Branch appointees, while there was always a right to 
appeal to the Judicial Branch.
    The Supreme Court decided that this arrangement was 
unconstitutional and, consequently, created a new mechanism by 
which a Director could single-handedly decide to review and 
alter a case. I'm concerned about the degree to which this has 
opened the PTAB up to political influence rather than a 
judicial application of facts to the law.
    The degree of change in PTAB proceedings under different 
Directors has done nothing to allay my fears. The patent system 
is not meant to be subject to frequent and unpredictable 
fluctuations. The point of a 20-year patent is to allow for 
planning, investment, and realization of new inventions. I'm 
concerned that we have allowed law in this area to become too 
subjective and too subject to the particular views of different 
administrations. This is not the stable basis on which our 
country's innovation ecosystem should rest.
    Ms. Vidal, I look forward to hearing your thoughts on these 
important issues as well as the rest of your testimony, and I 
thank you.
    I thank you, Mr. Chair, and I yield back.
    Mr. Issa. I thank the Ranking Member.
    Without objection, all opening statements will be included 
in the record.
    Mr. Issa. I now would like to introduce our one and most 
important witness, the Hon. Kathi Vidal.
    Ms. Vidal is the Under Secretary of Commerce for 
Intellectual Property and Director of the United States Patent 
and Trademark Office--a long title, and it's the reason we end 
up saying ``Director'' a lot.
    The Under Secretary uniquely leads an agency, as the 
Ranking Member said, of 13,000 employees charged with 
protecting U.S. innovations, entrepreneurship, and creativity. 
In fact, one of the most important mandates in the Constitution 
rests squarely on her shoulders.
    Before her appointment, she worked in private practice, 
where she represented clients in IP matters.
    We welcome the witness today for appearing.
    Pursuant to--you've seen this before, but you're required 
to be sworn in. If you would please rise to take the oath.
    Do you solemnly swear or affirm, under penalty of perjury, 
that the testimony today you're about to give is true and 
correct, to the best of your knowledge, information, and 
belief, so help you God?
    Ms. Vidal. I do.
    Mr. Issa. Please be seated.
    The record will reflect that the witness answered in the 
affirmative.
    With that, I would inform you that--and this one I can do 
by heart. You know the routine. Five or so minutes. We won't 
knock you off at the end, but your entire statement will be 
placed in the record.
    Pursuant to the tradition of this Committee, Members will 
afterwards ask questions for five minutes. I will also not 
gavel you if you're answering a question at the end of it. I 
may gavel the member if they try to come back with several 
more. The reason today is that at 10:30 we will have the South 
Korean President, and we, by definition, will recess at that 
point.
    So, we'll try to get through this as pithy as we can. 
Please make sure that your answers are full and complete, and 
we won't stop you in the process of answering.
    With that, I'm going to use the Jordan rule--one second. 
Oh, I'm sorry. I wanted to announce that I will use the Jordan 
rule and recognize Members in the order in which they want to 
be received. So, if both sides would both have that.
    So, with that, Director, we're honored to have you here. 
Please continue.

             STATEMENT OF THE HONORABLE KATHI VIDAL

    Mr. Issa. That's the other one I was going to mention.
    Ms. Vidal. OK. You'd think I would know that by now.
    Chair Issa, Ranking Member Johnson, and Members of the 
Subcommittee, I am honored and humble to sit before you today, 
and I am heartened by the opening statements.
    At the USPTO, we share a vision for America--a vision of 
good-paying jobs and economic prosperity for all your 
constituents, where access to jobs and the innovation ecosystem 
will not depend on where you live or how much money you have, 
where it won't depend on your gender or ethnicity, or whether 
you took time to raise your children or for other endeavors. We 
will continue to drive innovation without discouraging the 
competition that allows family farmers to thrive and does not 
unnecessarily delay lower-cost medications needed by many.
    To achieve these objectives, my first goal was to listen to 
you and to those our system is meant to serve.
    As I start my second year, we are focused on action. We 
recently started rulemaking around challenges to patents after 
they issue to evolve our practices to better serve America and 
the mission of the USPTO, while also better aligning with the 
America Invents Act.
    We have received your constituents' comments on how we can 
issue more robust and reliable intellectual property 
protections that will attract investment and grow jobs.
    We are continuing our work to protect the trademark 
register from harmful actions that threaten the accuracy and 
integrity of the trademarks the USPTO issues and harms American 
businesses.
    We are continuing to provide greater education and access 
to America's intellectual property system, complementing the 
goals of the Unleashing American Innovators Act that Congress 
passed last year.
    I'm proud to say that, because of the great work of the 
USPTO and Congress, the U.S. is again ranked No. 1 in the world 
on the U.S. Chamber of Commerce IP Index.
    As you know, we can, must, and will do better. The agency 
is committed to making strategic and targeted changes where 
they are needed while upholding the strong intellectual 
property system that has made America the innovation engine 
that it is.
    Chair Issa and Ranking Member Johnson, I am honored and 
proud to lead the USPTO and to work with my over 13,000 
incredibly talented and dedicated colleagues. We cannot do it 
alone. Together, we will work with you to fully realize our 
Founders' vision.
    Thank you again for the opportunity to testify today, and I 
look forward to your questions.
    [The prepared statement of the Honorable Kathi Vidal 
follows:]
    Mr. Issa. I thank the gentlelady. That's a record opening 
statement time.
    With that, we go to the gentleman from Texas, Mr. Moran, 
for his opening statement--or opening questions.
    Mr. Moran. Thank you, Mr. Chair.
    Thank you, Director Vidal, for coming today. I appreciate 
your time and answering some questions.
    I'm going to tell you at the outset that I'm in a position 
where my opinions are forming, they're not yet formed, about a 
lot of the PTAB. I have a lot of concerns about some of the 
things that I see.
    I appreciate the rulemaking process that you've gone 
through and the thoughtfulness behind some of those rules. I 
have great concerns about whether or not that should happen on 
our side of the ledger or your side of the ledger. In fact, I'm 
someone that believes strictly in separation of powers and 
think that, in this instance, I'm seeing a lot of overstep that 
I don't quite care for. I'd like to see a lot of what you've 
proposed come through the legislative process.
    So, I don't want you to take some of my comments in a 
negative way as it relates to the substance of what you've been 
doing but, really, more the process and the structural 
protections that I think here in America we hold dear to--
namely, separation of powers.
    I do want to thank you for your work in that regard. I 
actually represent the Eastern District of Texas, so patent and 
IP cases are close to my heart. So, I've got a couple questions 
I want to go through with you in particular.
    Some of the problems that I--as I talk to some of my 
counsel back in East Texas about PTAB and what's going on in 
the IP world, they have great concerns that what we're seeing 
over time is we're seeing, really, the USPTO shoving us away 
from Article III resolution of these cases into the PTAB system 
and more and more judges deferring to the PTAB system for 
invalidity decisions.
    Are you seeing--first, are you seeing some of those trends 
where Article III judges that are not experienced in IP 
litigation are simply saying,

        You know what? I don't want to have to deal with this. I'd 
        rather PTAB make that decision, and hopefully this case will go 
        away.

Are you seeing that?
    Ms. Vidal. We are not seeing that from a USPTO perspective.
    Mr. Moran. OK.
    In the Western District of Texas, I know there's a lot of 
concern about a particular judge handling so many cases, and so 
there's been some distribution efforts to try to get other 
judges to handle those cases.
    So, you're telling me, you're not seeing those other judges 
stay their cases in deference to the PTAB?
    Ms. Vidal. Speaking from the USPTO, that is not something 
we monitor. I, of course, have a history litigating patent 
cases, so I may have seen some of that in my past life, but 
that is not something that I'm aware the PTO has information 
on.
    Mr. Moran. Does that give you concern, that we're moving 
away from an Article III resolution of a lot of these cases 
into this Article II resolution?
    Ms. Vidal. It does not, for a couple reasons.

    (1)  The judge has the option to stay the case. So that's 
up to judicial management of individual cases.
    (2)  The PTAB is a group of judges who are very skilled in 
the technology, and if the judges do decide to stay, that just 
reduces the cost while those issues are being sorted out at the 
PTAB.

    Mr. Moran. One of the biggest issues as we look at the PTAB 
system, it seems there's very little standing or no standing 
requirement, effectively.
    I know you guys are proposing a rule that might deal with 
the standing, and I'd like for you to talk about the standing 
rule and whether or not you believe it's in the public's best 
interest to have more strict standing on who can and who can't 
bring a challenge to the validity of a patent.
    Ms. Vidal. You are correct that there is no standing 
requirement right now for people to engage in the PTAB 
practice.
    In the ANPRM, we have made some proposals based on feedback 
we heard from stakeholders. So, some stakeholders have told us 
that, because we don't look at the entity that is filing the 
IPR or the other procedure within the PTAB, that some entities 
may be abusing the PTAB process and may be doing it for 
monetary purposes and not to actually benefit our mission or 
the intent behind the AIA.
    So, that is fleshed out in the ANPRM, the Advance Notice of 
Proposed Rulemaking, that we have issued.
    Mr. Moran. These proposed rules, are they going to help 
reign in proxy entities that are coming in that really don't 
have a judicial interest in the matter but are serving as a 
proxy to continually and perpetually challenge certain patents?
    Ms. Vidal. That is an issue that we have flagged in the 
ANPRM. They are not rules per se; they are concepts that we 
will then shape into rules in the Notice of Proposed 
Rulemaking. That concept is absolutely in the Advance Notice of 
Proposed Rulemaking.
    Mr. Moran. What do you think the biggest challenge is or 
the biggest thing you're hearing back--I've got 24 seconds--in 
the PTAB process? What are you hearing from litigants about the 
PTAB process that needs to change, number-one issue?
    Ms. Vidal. I would say it's just the certainty, which is 
what I've tried to address as soon as I came onboard, that, for 
discretionary denial, I tried to make it more certain in the 
first instance while we awaited policymaking through the ANPRM.
    Mr. Moran. All right.
    I will mention--I think Mr. Johnson, the Ranking Member, 
mentioned certainty for businesses, and I agreed with those 
comments.
    I think the ultimate goal here is to promote and protect 
innovation and intellectual property. I like the PTAB system, 
but I think there's some tightening up to do. I would prefer 
that the Legislative Branch handle that. I'd love to have more 
discussions about that, be involved in that process, rather 
than see it come through the rulemaking process through the 
USPTO.
    So, thank you so much.
    I yield back.
    Mr. Issa. The gentleman yields back.
    We now recognize the Ranking Member for his five minutes.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    Director Vidal, as I mentioned in my remarks, I'm concerned 
about the patent system becoming unduly political over time 
under the decision of the Supreme Court in the Anthrax case--
excuse me--the Arthrex case.
    You have been one of the first Directors to have to 
confront how to use this review power granted by the Supreme 
Court. What steps have you taken to ensure that your Director 
review process is not overtly and overly influenced by 
political concerns or ex parte contacts that you have as a 
regular part of your job?
    Ms. Vidal. That is a very important question, and I 
appreciate the opportunity to address that.
    I will say, procedurally, as soon as I came onboard, I 
clarified the Director review process, and I made it very clear 
what my role would be, as the Director, with regards to PTAB 
decisionmaking. So, I do not get involved at all, other than on 
the public record. So, once a decision is made, it can come up 
for review, and then anything that I do is in writing.
    When I perform that role, I hold myself to the same 
standard of any Article III judge. I do not have any ex parte 
communications. I do not discuss the cases with parties. I do 
not discuss them with Members of Congress. I do not discuss 
them with anybody within the administration or anyone else.
    To me, it's my job, then, to act fairly and publicly on the 
record so that may then be reviewed by the Federal Circuit.
    Mr. Johnson of Georgia. So, you don't have any 
communications with the actual PTAB judges?
    Ms. Vidal. When they're making their decisions, I have no 
communications with them.
    I do have some PTAB judges that help me sort through 
Director review and work on decisions. The original panel that 
makes the decision, they act autonomously. I have no input, no 
insight into that. I do not look at their decisions until they 
are final and written and public. That's when I will take them 
up for review, if I do review them.
    Mr. Johnson of Georgia. What percentage of the cases that 
have been reviewed by you result in a reversal?
    Ms. Vidal. I don't have the exact statistics on that. I 
wouldn't want to speculate. I'm happy to get you that on the 
record.
    Mr. Johnson of Georgia. Twenty-five percent? Ten percent?
    Ms. Vidal. I look at the facts and the merits. I don't 
think about the outcome, but I'm more than happy to provide 
that on the record for you.
    Mr. Johnson of Georgia. Well, I'd appreciate it if you 
would.
    Mr. Johnson of Georgia. I continue to be concerned about 
the prevalence of fraudulent trademark applications. Despite 
the USPTO's rule to require U.S. counsel for foreign 
registrants and despite the backstop of the Trademark 
Modernization Act, these fraudulent applications seem to 
continue to clutter the register.
    What actions is the office taking to identify fraud on the 
front end? Is there anything else that Congress can do to help?
    Ms. Vidal. I share your concern. I am grateful for the 
Trademark Modernization Act. That has been very effective for 
use by individual stakeholders for expungement proceedings.
    You are right that, even though we put the USPTO put the 
U.S. local counsel rule in place, people try to abuse the U.S. 
counsel rule. As a result, between December 2022-March 2023, 19 
U.S. licensed attorneys were referred to our OED, Office of 
Enrollment and Discipline, for investigation. So, we are aware 
of the fraudulent activities, and we are on top of it.
    We've also expanded our efforts on sanctions and 
investigations to ensure that we can identify patterns and we 
can make sure that we're on top of any of the fraudulent 
activity.
    Unfortunately, it's not a one-off. It's very difficult for 
an individual examiner to identify fraud. It has to be work 
that we do across the trademarks organization to identify 
patterns of conduct. When we identify them, we sanction them, 
and then we remove the pending applications.
    Mr. Johnson of Georgia. Are you using artificial 
intelligence to aid you in that process?
    Ms. Vidal. We are not at this moment using artificial 
intelligence. We are looking into that.
    One of the challenges with artificial intelligence is we 
want to make sure we use it responsibly. So, we are doing a lot 
of investigations right now on all the new AI that is out 
there. We'd love to incorporate it as soon as possible, but we 
need to make sure that we're incorporating it responsibly.
    We are using investigative services, people we bring 
onboard to help us with that, because we don't have all the 
capability to do that all in-house.
    Mr. Johnson of Georgia. Thank you.
    I've got 25 seconds, but I'm going to yield that back--
    Mr. Issa. Will you--
    Mr. Johnson of Georgia. Well, I'll yield to the Chair.
    Mr. Issa. Yes.
    Just following up on the Ranking Member, your consideration 
of those PTAB review, there are thousands of them, many 
thousands of them a year. What percentage of them do you 
physically look at when you do the review? Obviously, you don't 
review in earnest all of them.
    Ms. Vidal. It's a very low percentage. It's based on those 
who file for Director review.
    Separately, we have a different process that you can file 
for review if you want to challenge an institution decision. 
So, I look at those, as well, to determine whether I should 
pull up any of them and address those.
    It's a very small percentage of the overall--
    Mr. Issa. You consider them de novo?
    Ms. Vidal. I do.
    Mr. Issa. OK.
    We now go to the gentleman from Kentucky, Mr. Massie.
    Mr. Massie. Thank you, Mr. Chair.
    Ms. Vidal, can you tell me what the purpose of the Patent 
and Copyright Clause is in the Constitution? What did the 
Founders have in mind?
    Ms. Vidal. The Founders had in mind that we needed to 
incentivize innovation, we needed to incentivize creativity for 
the good of the country.
    Mr. Massie. What are the criteria that inventions have to 
meet at the Patent Office to be patentable?
    Ms. Vidal. Right now, they have to meet a number of 
criteria, including: They have to be directed to patent-
eligible subject matter; they have to be novel; they have to be 
nonobvious; and they have to fulfill certain requirements as to 
the written description and enablement.
    Mr. Massie. Talk to me about this patent eligibility 
subject matter.
    Ms. Vidal. So, that is informed not only by the statute, 
but by Supreme Court case law. Essentially, there are Supreme 
Court cases that hold that certain subject matter is not 
eligible for patenting, like abstract ideas and natural 
phenomena.
    Mr. Massie. Let me ask you this: If the Founders intended 
to promote progress in the useful arts and sciences, why would 
we take entire fields of useful arts and sciences, such as AI 
or life sciences or diagnostics, and say, you know what, we're 
not going to promote the useful arts and sciences in these 
fields? Why would we let the Court do that, to say that those 
are off limits?
    Ms. Vidal. That is not a question I can answer.
    Mr. Massie. You're running the Patent Office, right?
    Ms. Vidal. That is a decision--
    Mr. Massie. Let me ask your opinion then, not any kind of 
legal thing or--and I'm not saying that you're in control of 
this. In fact, I think Congress is.
    What's your opinion, given that you know and take to heart 
the Founders' intent to promote the useful arts and sciences?
    Ms. Vidal. I would agree with you that the law around 
patent eligibility needs more clarity, and we need to make sure 
that we are protecting innovation in this country.
    Mr. Massie. I think we--the danger of not allowing patents 
in certain areas is that other countries, like China, are going 
to overtake us in those areas.
    So, the PTAB was set up before I got here, right before I 
got here. It's supposed to be a cheaper, better, faster way of 
adjudicating patent eligibility or validity.
    Why do every inventor I talk to, why are they upset about 
PTAB?
    Ms. Vidal. I believe that, from what I heard from speaking 
to them--so, when I started my time as the Director, I reached 
out and spoke to a lot of inventor communities. What I heard 
over and over again were that they had concerns about the way 
certain entities were using the PTAB process, that it was 
costing them more because there were serial petitions. They had 
to face the cost both in District Court and at the PTAB when 
the cases were not stayed in the District Court. They were 
concerned with the implementation of the PTAB, that it was 
removing their patents once they had invested money into it.
    Mr. Massie. Those sound like valid concerns to me. Do you 
think they have valid concerns?
    Ms. Vidal. The USPTO has taken those concerns into 
consideration in shaping the Advance Notice of Proposed 
Rulemaking. So, there is specific language in there to attempt 
to address those concerns.
    Mr. Massie. I share my colleague's view that we should be 
writing the laws, not the Supreme Court, and we shouldn't leave 
these open areas for you to have to do it.
    Isn't it true that the biggest users of PTAB are Big Tech 
and foreign entities?
    Ms. Vidal. I believe that may be true. I'm happy to answer 
that off the record in terms of actual statistics.
    Mr. Massie. Well, the top 20 users of the PTAB are large, 
wealthy, and powerful companies.
    Do you think it's appropriate for us to give a special 
venue for these entities? I mean, they're the preferred users 
of PTAB, not American inventors. This gets them out of the 
court system. Do you think it's appropriate for us to cater to 
those entities?
    Ms. Vidal. I don't think the law should cater to any one 
entity, which is why I took into consideration everyone's views 
and input over the last year in exercising our rulemaking 
authority and moving forward with the Advance Notice of 
Proposed Rulemaking.
    Mr. Massie. Should inventors have the right to have their 
day in court if they don't get a favorable ruling in PTAB?
    Ms. Vidal. For that one, I will say, that is up to Congress 
and not something that I can comment on.
    Mr. Massie. What's the current situation? Do inventors have 
their right to a day in court?
    Ms. Vidal. I'm not sure how to answer that. It depends on 
what you mean by ``day in court.''
    Mr. Massie. Can they appeal it? Will their appeals be heard 
in an Article III court?
    Ms. Vidal. Appeals from the PTAB?
    Mr. Massie. Right.
    Ms. Vidal. Yes, those would be heard by the Federal 
Circuit.
    Mr. Massie. Do you know what--Rule 36 is lawyer shorthand 
for--can you tell me what Rule 36 is in the context of patent 
appeals to the Article III court?
    Ms. Vidal. Yes. The Federal Circuit can issue--can Rule 36 
a case, which means that they issue a decision without a full 
written opinion.
    Mr. Massie. The opinion can be one word, affirmed. Is that 
correct?
    Ms. Vidal. That is correct.
    Mr. Massie. So, as I yield back, I would just say that I 
think it's wrong that they don't get their day in court, that 
they get a one-sentence affirmation of PTAB, and I think we 
need to change that as well. No slight to you.
    Thank you for your time.
    Mr. Issa. If I can--
    Mr. Massie. I yield back.
    Mr. Issa. --piggyback just for clarity, if you come through 
a District Court to the same Fed Circuit, does Rule 36 apply?
    Ms. Vidal. Correct.
    Mr. Issa. So, either way, they can do that. They can do it 
after a full jury trial in a Federal Court.
    Ms. Vidal. They can.
    Mr. Issa. Thank you.
    Mr. Massie. In that case, they've had a jury trial.
    Mr. Issa. The gentleman is correct, in both cases.
    With that, we go to the Chair emeritus and my friend for so 
long on this Committee, the Ranking Member on Science, an area 
that hopefully will opine on how we add to the patentability of 
some new technologies, the gentlelady from San Jose, Ms. 
Lofgren.
    Ms. Lofgren. Well, I thank you, Mr. Chair. Much as I would 
like to have the Science Committee have jurisdiction over 
patents and trademarks we do not.
    Mr. Issa. We weren't going that far. You can opine in this 
Committee.
    Ms. Lofgren. I would just like to focus in on the role of 
the PTO versus the role of Congress.
    You are very committed to patent quality. So, is Congress. 
When we enacted the change in the law, we assigned a role to 
the PTAB to achieve that goal. As I read through the proposed 
rule, I'm not sure that the proposed rules are, in fact, 
consistent with what Congress did in the act.
    Now, if we got it wrong we could revisit that. Not all 
nonpracticing entities are trolls, but there were certainly 
some trollish behavior that was an objective of the act. If we 
have the balance wrong, this Committee will be eager to work on 
it.
    I'd like to focus in on the issue of when you can file. The 
AIA is very consistent and very clear: You have 1 year to file 
a petition after your suit. If you look at the proposed rule, 
the review would be cutoff if a District Court's median time to 
trial is shorter than what the statute prescribes for a PTAB 
proceeding.
    Now, this proposed rule outlines that if you're sued in a 
fast-moving district, you may have only a few months to prepare 
your petition. Further, in some districts, you might not be 
able to file at all.
    Now, the median time to trial in the Eastern District of 
Texas is 16 months, which is two months quicker than the PTAB 
schedule. As a result, any plaintiff could potentially prevent 
access to a validity review just by filing a lawsuit in that 
district.
    Now, the PTO proposal to shorten the 315(b) deadline 
clearly contradicts the text of the AIA and could create the 
very problems that Congress sought to avoid by enacting this 
one-year deadline.
    As I noted earlier, if that's a good idea, if it's 
something that Congress should revisit, we can revisit it. The 
PTO is not a lawmaking body.
    So, I'd like to address this concern that I have raised 
here with you.
    Ms. Vidal. Thank you for that.
    The ANPRM, the Advance Notice of Proposed Rulemaking, 
contains provisions that we thought were positive provisions to 
move forward on in view of the comments the USPTO received in 
response to its request for comment on this very subject 
matter. It also contains some provisions that were proposed by 
stakeholders, by those in various jurisdictions.
    So, it contains a myriad of options. We want to hear from 
stakeholders not only on how those provisions might affect 
them, how we should evolve them, but whether we even have the 
authority to move forward with them and whether they have 
economic significance. So, we are hoping to hear from 
stakeholders on all of this and make it a very open process.
    As to whether there is something in there that shorts the 
time period, I'm not sure I quite understand that, but happy to 
answer any questions on that.
    Ms. Lofgren. Well, I guess, just revisiting that, it's your 
proposed rule, and it may be--maybe it's a good idea. I'm not 
saying otherwise. It's great to reach out to the broader 
community that has an opinion, but if your proposed rule is 
inconsistent with the statute, having a proposal or a community 
that thinks it's a good idea really is irrelevant. If they 
think it's a good idea, they ought to come to us. We're the 
ones that write the statute, not the PTO.
    I mean, why would you propose something that's inconsistent 
with the act?
    Ms. Vidal. The way I understood it, that, by doing the 
ANPRM, we were giving stakeholders a chance to shape the rule. 
So, to my understanding, those are not our proposed rules. 
Those are basically winnowing down the options and the feedback 
we previously received so that we can get stakeholder feedback 
as we shape the rules, and the rules would be in the Notice of 
Proposed Rulemaking.
    So that was my understanding, and that was the approach the 
USPTO took when we went forward with it.
    I'm not aware of anything within the body of the document 
that's inconsistent, but I'm happy to address anything now or 
offline. I'm more than happy to speak with you offline at any 
time about this to make sure we're solving for this in the 
proper way.
    Ms. Lofgren. Well, I'd be happy to take you up on that. 
There are a number of other items in the proposed rule, and I 
think it's really a surprise that the PTO that is publishing 
the proposed rules is now saying it's not their proposed rules. 
That is very odd. There are a number of proposals that are not 
consistent with the AIA.
    As I say, if we got it wrong, we could revisit it. It's not 
up to the PTO to try and make the law and redo it in your 
rulemaking process.
    With that, Mr. Chair, I yield back.
    Mr. Issa. I thank the gentlelady.
    I share her feelings, that we're more than a stakeholder, 
and we have spoken as to that issue some 10 years ago.
    With that, we go to the gentleman from California, Mr. 
Kiley.
    Mr. Kiley. Thank you, Mr. Chair.
    Thank you for your testimony, Mr. Vidal--or Ms. Vidal.
    Do you have a sense of the average cost of an IPR for a 
patent owner to defend their patent through an IPR?
    Ms. Vidal. So, my sense is that the fees to the USPTO 
itself are around $30,000--oh, actually, for the patent holder, 
they're not. For the patent holder, it's just the legal fees. 
So, it depends on whether they can procure pro se assistance or 
whether they actually have to pay an attorney to go through 
that process.
    Mr. Kiley. Yes. So, if they do have to pay an attorney, do 
you just have a ballpark figure for how much it generally 
costs?
    Ms. Vidal. I would estimate between $150,000 to over 
$300,000.
    Mr. Kiley. Do you think that has any effect on the 
incentive to innovate and to invent?
    Ms. Vidal. I have heard from stakeholders that the IPR 
process is creating concerns with innovators in terms of the 
incentive to innovate and, more importantly, the incentive to 
patent.
    Mr. Kiley. Right.
    Have you heard of a recent report called ``Wake Up, 
America,'' which found that China's gross innovation 
capabilities are now 40 percent greater than the United States?
    Ms. Vidal. I'm not aware of that.
    Mr. Kiley. Do you think that sort of sounds right, that 
China has been gaining on us in key areas of innovation?
    Ms. Vidal. I know that is their intent, and that would not 
surprise me in certain areas.
    Mr. Kiley. So, do you think there's a role in terms of 
reforming the patent system to try to reverse that trend? If 
so, what do you think it is?
    Ms. Vidal. So, I think we need to do what is best to 
promote a system that encourages and incentivizes innovation 
and that creates clear rights that stakeholders and individual 
inventors can rely upon.
    Mr. Kiley. So, do you think--do you have anything specific 
in mind to move us more in that direction?
    Ms. Vidal. So, two things in mind.
    One is, we are trying to work on measures related to the 
robustness and reliability of patent rights so that the patents 
we issue in the first instance are strong.
    Mr. Kiley. Uh-huh.
    Ms. Vidal. That's everything from incorporating artificial 
intelligence into search, to a number of proposals we put out 
there through a request for comment that we are looking into 
now and moving forward on.
    The second part relates to the PTAB, and that relates to 
the ANPRM that we recently issued, which contains various ideas 
on how we might reshape our practice as it relates to the PTAB 
to ensure that inventors have more--that inventors can rely on 
their patents.
    Mr. Kiley. I see.
    So, on the first point, do you believe that the PTO 
currently issues a large volume of invalid patents?
    Ms. Vidal. I don't know if I would go as far as saying 
that. I do believe that patents have been issued with search 
capabilities and other measures that are not as good as what we 
have today, and I know that we're going to get better into the 
future. So, there are definitely patents that are issued that 
are not, by any standard, looking at the prior art that's 
available, are not valid.
    Mr. Kiley. I mean, the existence of the PTAB is sort of 
predicated on the belief that there are invalid patents being 
issued.
    So, is there any argument to be made that maybe some of the 
vast resources that are going into the PTAB might be shifted 
to, sort of, pre-issuance examination of patents?
    Ms. Vidal. That is an interesting idea. I'm happy to take 
that back to the team.
    Mr. Kiley. All right. Thank you very much.
    What is the ability to make use of the IPR process for a 
patent that's already been deemed valid by a District Court?
    Ms. Vidal. Can you repeat that, please?
    Mr. Kiley. What is the ability to challenge a patent 
through the PTAB that's already been adjudicated as valid by a 
District Court?
    Ms. Vidal. So, you still have the ability to challenge that 
at the PTAB. There's nothing stopping that other than the 
ability of the Director, and, by delegation, the board, to 
discretionarily deny the institution of the challenge.
    Mr. Kiley. Do you think that sort of parallel form or 
duplicative adjudication is a healthy thing for the patent 
system and for innovation?
    Ms. Vidal. That is one of the things we're trying to flesh 
out through the ANPRM, is to figure out what kind of--how we 
can exercise our rulemaking authority to deal with issues like 
that?
    Mr. Kiley. Sure.
    Then following up on a question from Mr. Massie related to 
subject matter eligibility, you said that there does need to be 
greater clarity. Do you have any further thoughts on that and 
what role Congress might be able to play in providing clearer 
guideposts and more clarity for inventors?
    Ms. Vidal. I know that bills have been introduced in 
Congress, and we have a whole team that focuses on this, 
including working with the DOJ when it comes to these types of 
issues at the Supreme Court. We'd be more than happy to work 
with Congress on any bills and provide technical assistance.
    Mr. Kiley. Thank you very much.
    You also mention in your written testimony that the USPTO 
has launched its Climate Change Mitigation Pilot Program, which 
accelerates the ``examination of patent applications involving 
innovations to reduce greenhouse gas emissions.''
    Is there any precedent for this, sort of giving privileged 
status to particular types of innovations in the patent 
examination process?
    Ms. Vidal. For years, the USPTO has had accelerated 
programs for different technologies that the government has 
tried to accelerate.
    Mr. Kiley. So, there is precedent for this.
    Ms. Vidal. There is, correct.
    Mr. Kiley. OK.
    I don't know exactly how this particular program works, but 
I would note that you probably don't want to be too narrow in 
how you define what's eligible, because there might be a lot of 
innovations, say, in AI that are not specifically climate-
change-related, but that might ultimately be very useful toward 
that goal.
    Thank you very much for your testimony today.
    Mr. Issa. I thank the gentleman.
    I might note that, if there's litigation on a pending 
patent, that has long been a source of acceleration. So, there 
are a number of reasons that they do have moving them up that 
many of us have experienced.
    We now go to the patient gentleman from Maryland, Mr. Ivey.
    Mr. Ivey. Thank you, Mr. Chair.
    Director Vidal, welcome. I appreciate your appearance and 
your testimony today.
    Like Judge Moran, I'm a little new to this area, so I'm 
going to ask a few questions. I welcome the opportunity for you 
to educate me and get me up to speed on these issues.
    One of the things--and I'm focusing on the PTAB board, as 
well, and the discretionary denials. I'm not clear on the 
source of your authority to follow that path or to issue these 
kinds of denials. I wanted to get a sense--I know the AIA is a 
basis for the activity, but it does seem to be a bit of a 
stretch of the authority to do it.
    So, I wanted to give you a chance to give me some guidance 
on how that works and how you operate using that tool.
    Ms. Vidal. Thank you. I would welcome the opportunity to 
speak with you offline as well, including going into more 
detail on that authority, and I'm happy to provide that off the 
record.
    Just to give you an example, the AIA codified--I'm going to 
get a little bit nerdy here with the Code area--35 U.S.C. 316, 
which provides for the Director to prescribe regulation. So, 
Congress has directed our office to prescribe certain 
regulations.
    In relation to that, there is language in here that says:

        For considerations in prescribing regulations under this 
        section, the Director should consider the effect of any such 
        regulation on the economy, the integrity of the patent system, 
        the efficient administration of the office, and the ability of 
        the office to timely complete proceedings instituted under this 
        chapter.

    Now, that ties into other statutory provisions. If it's OK 
with you, I would love to provide a full answer off the record 
that sets forth how the AIA envisioned that the USPTO would 
engage in rulemaking and what that would look like.
    Mr. Ivey. OK. Thank you for that, and I look forward to it.
    Mr. Ivey. As I understand it, with the discretionary 
denials, you can stop the process when a patent is being 
litigated in court. Is that right?
    Ms. Vidal. With discretionary denials, there are a number 
of things that could trigger a discretionary denial, but it 
would essentially result in the USPTO not instituting an IPR 
proceeding. It could happen when there is a parallel District 
Court proceeding. That could be one of the circumstances that 
would cause us not to move forward.
    Mr. Ivey. All right. So, your view is that's regulatory and 
not adjudicatory?
    Ms. Vidal. So, the discretionary denial is within the 
discretion of the Director. So, the issue is really how the 
Director exercises that discretion to not move forward with 
institution.
    Mr. Ivey. So, the denial is with respect to moving forward, 
but it's not a denial on the merits?
    Ms. Vidal. It is not a denial on the merits. The merits 
could be taken into consideration. So, under the current 
standard, if there is a parallel District Court case, we do 
look at the merits of the case. So, if it appears that the 
patent reaches a certain threshold in terms of invalidity, we 
will take that into consideration as to whether that patent 
should be removed.
    Mr. Ivey. OK.
    Then I had a second area I wanted to ask you about, and 
that's with respect to the ``substantial relationship'' 
language in the ANPRM.
    I wanted to get a sense of--I guess concerns have been 
raised for me, with respect to how broadly that might be 
applied and the impact that it could have beyond, certainly, 
just simply one entity and the multiple relationships that 
could be subject to the decision that's made.
    What's your take on that and how it's going to work? How 
are you going to figure out the parameters of how you're going 
to define that?
    Ms. Vidal. That was one of the issues that we raised as 
part of the Advance Notice of Proposed Rulemaking. We want 
feedback from stakeholders on how they think we should define 
it.
    I'll tell you where that came from. That came from a sense 
from stakeholders that certain entities were trying to avoid 
some of what Congress put into place in terms of estoppel, in 
terms of not getting multiple bites of the apple and continuing 
to attack a single patent over and over and over again. There 
were some concerns that entities had enough of a relationship 
that they were essentially disguising so that they could avoid 
what Congress had put into action.
    So, instead of trying to define it in the first instance 
through rulemaking, through a Notice of Proposed Rulemaking, we 
issued the Advance Notice of Proposed Rulemaking so that we 
could hear from stakeholders on: Should that be defined the way 
it is right now, which is real parties and interest and privy, 
or should it be expanded in some way to make sure that the 
parties really are related, that they're bound by what Congress 
set forth?
    Mr. Ivey. Thank you.
    I see my time has expired, so I'd yield to the Chair.
    Mr. Issa. We'll just take it back if you don't yield it 
back. Thank you for your very good questioning.
    With that, we go to the gentleman from Wisconsin, Mr. 
Fitzgerald.
    Mr. Fitzgerald. Thank you, Director, for being here.
    It sounded like Mr. Ivey was kind of moving in this 
direction, but, last week, PTO submitted an Advance Notice of 
Proposed Rulemaking proposing substantive changes to the inter 
partes review process.
    Can you just walk us through kind of what actions, either 
by Congress or industry--what prompted the proposed rule?
    Ms. Vidal. It started when there was some concern about how 
the USPTO exercises its ability to discretionarily deny 
petitions that we receive for IPRs. There was some case law and 
some guidance set forth before I took on the position of the 
Director.
    From the beginning, what I've tried to do is initially just 
clarify what that guidance was so that stakeholders would have 
certainty and clarity.
    What the ANPRM does is, it addresses stakeholders' concerns 
about the way the USPTO is implementing the AIA and activities 
by certain entities to avoid some of the language that the 
Congress put forth through the AIA.
    So, we did issue a request for comment to hear 
stakeholders' views on discretionary denial. We received 822 
comments. This was about 1\1/2\-2 years ago, something like 
that. We didn't feel like there was enough information there to 
go directly into rulemaking.
    So, what we did was hear from more stakeholders over the 
course of the year, from small entities, from large 
corporations, from everyone, to hear what they were 
experiencing. We went back and read those 822 comments and 
tried to shape different ideas that we could move forward with 
to make it very clear how the Director, and, by delegation, the 
board, is going to exercise their discretion.
    Mr. Fitzgerald. So, the rule that proposes a change in the 
test to determine the PTAB review, it kind of abandoned the 
statutory test from the Patent Act and went from ``reasonable 
likelihood'' to ``compelling merits test.''
    Could you explain the difference between those two or how 
you see the effect of that?
    Ms. Vidal. So, it doesn't necessarily abandon that, because 
that overlays the discretion of the Director to institute. So 
what it really does is it clarifies that discretion, which has 
been in place for quite a long time. It takes it to the next 
step, seeks stakeholder input on how that should be clarified 
and how that should be shaped. So, that's the role that the 
ANPRM would play.
    In terms of your questions about the test for institution 
independent of the discretion to deny institution, the thought 
with the substantial merits test is, prior to my position, to 
me being the Director of the USPTO, there was some thought that 
the USPTO was discretionarily denying even when there was a 
strong case. So, that's where that test came from, I believe 
the intent of the AIA was to get rid of the patents that really 
were invalid.
    I wanted to make sure that the procedures we had took that 
into consideration when it came to discretionary denial and 
that we would not discretionarily deny if it reached a 
substantial merits test where we believed it was a strong case 
and we thought it was best for America not to have invalid 
patents out there.
    Mr. Fitzgerald. So, the only thing I would say is, when I'm 
in the district or touring a business and--it doesn't come up 
often, but when patent law does come up, a lot of times there 
is kind of a level of frustration among small businesses, that 
they're viewed--they are not necessarily viewed in the same 
light that you might see with some of the major corporations 
that have an army of attorneys available to them.
    So, I'm just wondering, how have you addressed that or kind 
of moved forward thinking what are the different levels of 
business, and how can they appropriately--how could you 
appropriately interact with them?
    Ms. Vidal. Well, and I appreciate that. In my past life, I 
represented both large organizations as well as startups. I 
spent a lot of time with startups. So, when I came onboard, 
what I did was look at all the stakeholders that USPTO engaged 
with. I expanded that to make sure we were getting out there 
more into communities, hearing from inventor groups, hearing 
from individual inventors.
    So, the way we shaped the ANPRM was to make sure that we 
were getting out to people even if they didn't have the ability 
to come to us. So, we believe that the ANPRM really takes into 
consideration all stakeholders, not just those who might 
ordinarily have access. It's all been about access.
    The other thing that I did is I started up a new ``Engage 
with the Director'' website so that anybody that has something 
they want to contribute or say can do that.
    So, for me, it's all about, we need more people in the 
ecosystem. We need to support small inventorship and 
innovation. We need to give people access at all levels, 
including in this process.
    Mr. Fitzgerald. Very good. Thank you.
    Mr. Chair, I yield back.
    Mr. Issa. I thank the gentleman.
    We now go to the gentleman from South Carolina, Mr. Fry.
    Mr. Fry. Thank you, Mr. Chair, for having this hearing 
today.
    Thank you, Director, for being here. Much like many of my 
colleagues on both sides of the aisle, I am a neophyte to this 
area, so a lot of this is very educational. So, I appreciate 
the testimony that you've given today.
    I want to touch on a few areas. Let's start with the 
USPTO's Advance Notice of Proposed Rulemaking that came out a 
week ago.
    Congress established the post-grant review programs in the 
AIA because there was consensus about the quality of patents 
coming out of the PTO, that they were poor. We needed an 
affordable and streamlined way for the PTO to check its work, 
as you said, ``in the Advance Notice.''
    However, the limitations of the Advance Notice of Proposed 
Rulemaking suggests there are no patent quality problems at the 
PTO.
    Are we putting the cart before the horse here? Shouldn't 
the PTO internally fix the problem with the examination 
process, instead of seeking to go beyond its statutory 
authority, limiting the ability of others to address the PTO's 
mistakes?
    Ms. Vidal. I appreciate that. I will say, on the statutory 
authority, it is not our intent to go beyond that, and we will 
work hard to make sure that does not happen.
    Can you repeat your other question, please?
    Mr. Fry. No, I think that was it. So, your testimony is 
that you're not going beyond the statutory authority. What I'm 
hearing from, really, both sides of the dais, at this point, is 
that there's concerns that maybe that is happening.
    Is it possible to put that on hold, put these proposed 
rules on hold, pending an examination by this body?
    Ms. Vidal. So, first, I do remember your last question, and 
that was, should we be focusing on patent quality in the first 
instance? I'm happy to answer both of those questions.
    As to the patent quality in the first instance, we are 
focused on that. We put out a request for public information 
and comment on our procedures for issuing patents. We are right 
now sorting through all those answers and trying to figure out 
the next steps to move forward--everything from that to 
additional training on artificial intelligence, to the way we 
route patents to the right examiner.
    I could go on and on. That has been a huge focus of ours, 
to make sure that we're doing the best job possible to issue 
the strongest IP in the first instance.
    As to the ANPRM and whether that should be put on hold, it 
is just an ability to collect comments. So, that gives 
stakeholders the ability to suggest if there are any ways in 
which we are going beyond our authority and what their 
reasoning or justification or backing for that is, given that 
we were given rulemaking authority by Congress specifically and 
given that we're trying to comport our practices to more 
closely align with the AIA and make sure there aren't any 
loopholes where people are escaping what Congress put into 
place.
    So, on that, I would suggest that, once we see the 
comments, that would better inform this issue.
    Mr. Fry. Thank you, Director.
    Now, I want to talk about China. I'm going to shift gears.
    A report recently issued by the Information Technology and 
Innovation Foundation found that China's gross innovation 
capabilities are now almost 40 percent greater than that in the 
United States.
    The report, titled ``Wake Up, America,'' finds that China 
has surpassed the United States in total innovation and is 
coming close to generating a greater proportion of all 
innovation. Patents issued by the USPTO are believed to be 
increasingly less enforceable since they are the subject of 
second-guessing in PTAB.
    What reforms do you think must be part of any meaningful 
strategy to wake up our patent system and ensure that the U.S. 
remains competitive with China?
    Ms. Vidal. I would put it into a couple different 
categories.
    One, to get to the point of patent-eligible subject matter, 
I think that needs clarity. I think that would be a good first 
step, wherever that clarity comes from. We are working with the 
Supreme Court, through the DOJ, to provide feedback on that. We 
are happy to provide technical comment to Congress on any bills 
when it comes to that.
    In addition to that, we need to make sure we have more 
access to our innovation ecosystem. We are doing everything 
from educating children across the country in IP, innovation, 
entrepreneurship, so that we start from the beginning. We 
educated 280,000 children last year. We are trying to reduce 
barriers everywhere and meet people where they are, including 
people in our military, military spouses, et cetera, so that we 
get more people innovating within our country. I think that's 
going to be critical as well.
    To the extent that there is a concern by those who are 
innovating about patenting, if they have concerns that if they 
patent it's not going to be upheld because of procedures, 
that's what the ANPRM is attempting to address.
    Mr. Fry. OK. Thank you.
    Huawei received more U.S. patents last year than any 
company except for IBM. It's expected to continue that pace 
moving forward. Huawei is essentially banned from selling any 
products in the United States due to sanctions.
    Do you think that Huawei's continued and increasing 
acquisition of U.S. patents, despite those sanctions, 
represents a danger to the United States and its businesses?
    Ms. Vidal. I think we have to closely watch competition 
from other countries and make sure that we're doing our best to 
ensure that we're competing.
    Mr. Fry. Thank you, Mr. Chair.
    I know I'm out of time, but I yield back.
    Mr. Issa. I thank the gentleman.
    We now go to the gentlelady from Florida, Ms. Lee.
    Ms. Lee. Thank you, Mr. Chair.
    Welcome to you. Thank you for being here with us today.
    I would like to focus some questions on the operational 
status of USPTO and your IT modernization project.
    We know that back in 2018 you experienced a very 
significant
nine-day systems outage. The 2020 Inspector General report from 
the Department of Commerce detailed a number of critical areas 
in which it recommended improvement, modernization, and making 
sure that this type of outage would not happen again in the 
event of a disaster.
    So, I have a few questions related to that IT modernization 
project. Let's start with the backups themselves and where you 
all are in terms of contingency planning and keeping backup 
logs and backup data where you can get back to a place of 
recovery.
    What is the status of improvement and modernization in that 
regard?
    Ms. Vidal. Thank you for that question. There's a lot I 
could say on that, and I will provide more information on the 
record for you, if you will permit.
    I will say that we critically need to move to more 
innovative systems. Our technology is very outdated; USPTO's 
technology is very outdated. We have been moving swiftly and 
deliberately to make changes.
    We are moving to a new data center. That move has been very 
successful so far. I can provide you with the statistics on how 
much of the data has already been moved and how that gives us 
additional certainty when it comes to our data systems.
    Ms. Lee. OK.
    What about the legacy operating systems that you're using? 
That was another area that was identified as those needed to be 
modernized or replaced. What's the status of those legacy 
operating systems?
    Ms. Vidal. So, we are in the process, as well, when it 
comes to those. On the trademark side, around December of this 
year, we migrated a lot of the trademark data and the trademark 
processing to a new system. We are continuing to go through all 
our legacy systems and make sure that we prioritize and 
modernize as quickly as we can, given the fees that we have.
    Ms. Lee. OK.
    On the subject of cybersecurity, tell us the status--how do 
you feel about your level of overall cybersecurity, 
vulnerability to threat actors? What is the status over there 
on cyber?
    Ms. Vidal. From the data that I get from our CIO, we are 
very well-positioned. We have a lot of processes in place. 
We've hired experts in cybersecurity. We are looking to do best 
practices across government. We're doing them now, but we know 
that this continues to be an issue and that there are going to 
be new types of attacks.
    So, it is front of mind, to the point where in every 
management meeting that's one thing that we talk about, is 
cyber, because it's so critical to everything that we do that 
we're secure when it comes to cyber.
    We're working to ensure that our stakeholders are secure as 
well. So, we're doing outreach to help them understand how they 
need to be secure as well.
    Ms. Lee. If you were to have a system failure today, do you 
have any sense of the actual time to recovery? If there was a 
significant breach, do you have a sense of your time to 
recovery and getting back to an operational status?
    Ms. Vidal. I would have to get back to you on the record on 
that.
    Ms. Lee. OK.
    Ms. Lee. I know that we've invested I believe it's hundreds 
of millions of dollars in modernization already to try to help 
with some of these problems--the legacy systems, the backup 
data, the time to recovery.
    Can you tell us some of the highlights of where those 
dollars have been invested and some of the improvements that 
you've seen or made already?
    Ms. Vidal. One of the largest improvements is this data 
center that we are creating that's going have all the modern 
technology and really provide the USPTO with the resilience 
that it needs.
    Then, beyond that, we're targeting systems based on the 
ones that are the most important to migrate to new technology. 
So, that's where a lot of that money has been spent. We've 
collected that through our rulemaking.
    Ms. Lee. Uh-huh.
    Another one of the specific recommendations that was in 
that IG report related to contingency planning and documenting 
those contingency plans so that there was a written protocol in 
place and something that everyone at USPTO would know, ``This 
is what we're doing on data backup. This is our plan for 
recovery in the event of a disaster.''
    I believe the specific recommendation was to follow NIST 
800-34 to ensure all that contingency planning documentation 
was in place.
    Has that piece of this project, to your knowledge, been 
completed?
    Ms. Vidal. I will report off the record, but I will say 
right now that I believe it has. We definitely agreed with all 
the recommendations and immediately went to work putting them 
into effect.
    So, I can verify that off the record, where we are in that 
process, to make sure that I have that correct.
    Ms. Lee. Thank you very much.
    Mr. Chair, I yield back.
    Mr. Issa. I thank the gentlelady.
    We now go to the gentleman from Virginia.
    Mr. Cline. Thank you, Mr. Chair.
    Thank you, Ms. Vidal.
    Recently, you issued orders sanctioning two entities, 
OpenSky and Patent Quality Assurance, for flagrant abuse of 
PTAB proceedings by imposing monetary sanctions as well as 
removing both from those proceedings.
    Both filed IPR petitions in an attempt to extort a patent 
owner out of a piece of a large patent judgment awarded in 
court. You later rescinded part of those sanctions by 
reinstating both abusers back into the PTAB proceedings.
    Why did you do that?
    Ms. Vidal. So, that is actually an ongoing controversy. I 
can't talk about the facts of that particular case.
    I can talk about my decisionmaking generally, which is, as 
the Director, I make decisions based on the information before 
me. I work with our solicitor's office, and we work with the 
Department of Justice, as well, to make sure that every 
decision we make is the right decision and legally appropriate.
    So, that's all I can say on that right now because I can't 
talk about the specific facts of that case.
    Mr. Cline. Are monetary sanctions alone sufficient to deter 
PTAB abusers, considering the massive payouts they're 
attempting to extort and the fact that they may be allowed to 
continue their PTAB cases all the way to the end?
    Ms. Vidal. I will say at a high level that there are only 
certain sanctions that we can issue, and so--and monetary 
sanctions are one of them.
    Mr. Cline. Are they alone sufficient?
    Ms. Vidal. I've not investigated that because I didn't have 
the authority to do more than that, so I wasn't balancing 
anything against each other.
    Mr. Cline. OK.
    What steps have you taken to address the serious concerns 
raised in the GAO's investigation last year into improper 
influencing of PTAB decisions by agency leadership and the lack 
of transparency in the decisionmaking process?
    Ms. Vidal. So, first, I agree with all the recommendations 
from the GAO. The USPTO agrees with them.
    When I came onboard, it was after the Arthrex decision, the 
Supreme Court decision that really changed the role of the 
Director vis-a-vis PTAB decisions. So, I immediately updated 
the Director review website that provides information to the 
public and the PTAB in terms of the role the Director will 
play. I made it very clear that the Director will not get 
involved in any decisionmaking until the Director plays her 
role under Arthrex. So, in that case, there is no interference 
between me and the PTAB until they issue a final written 
decision. Once they issue it, then anything that I do is going 
to be on the public record.
    That is something that we set forth, we asked for comments 
on that process, and I intend to go into rulemaking, as well, 
to make sure that everything that we are putting into place to 
secure that system persists into the future.
    Mr. Cline. OK.
    Your memorandum outlining reforms to internal review of 
PTAB decisions retains mechanisms for individuals other than 
the judges deciding the case to communicate with the judges and 
potentially influence their decision before it's issued.
    Why are such mechanisms necessary, considering that you 
have the authority to review and change any PTAB decision after 
it's issued in a transparent way?
    Ms. Vidal. So, I'm not sure which portion of the memo that 
you're speaking to. I know that some of the PTAB judges will 
want to consult with another PTAB judge in management or with 
our solicitor's office to ensure that they have the right 
understanding of something. So, we do have the ability for them 
to do that.
    Nobody who they consult with has the right to direct their 
action. They are independent judges. Once they render their 
decision, then I would review it after that.
    Mr. Cline. OK.
    I'd love for a second round to talk about your lack of 
compliance with the Congressional Review Act, but let me ask 
you about the use of nonstatutory discretion in PTAB cases.
    The stated basis for many of USPTO's PTAB rules, such as 
the NHK-Fintiv rule, and many of the proposed rules in its 
recent notice is Section 314(a). Do you agree that Section 
314(a) does not use the word ``discretion'' anywhere?
    Ms. Vidal. I don't have that in front of me. I'm happy to 
get back to you off the record on that.
    Mr. Cline. OK.
    Ms. Vidal. I'm happy to provide the entire authority for 
discretionary denial off the record.
    Mr. Cline. OK.
    Mr. Cline. All right. Well, at this point, I'm going to 
yield my final minute to the gentleman from Kentucky, who has 
some burning questions.
    Mr. Massie. I thank the gentleman from Virginia.
    Mr. Kiley had a great point earlier that I want to follow-
up on. Are all the tools that are available to the PTAB court 
available to the patent examiners?
    Like, is there something more we could do to improve the 
presumption of validity when a patent comes out or the 
presumption that it won't be invalidated by PTAB?
    Ms. Vidal. So, we have a feedback loop between the PTAB and 
the examiners to make sure that any lessons that were learned 
at the PTAB about examination are fed back to the examiners, 
including--one of the feedback loops is related to prior art. 
So, if there are additional patents in a chain of patents that 
are still before the examiner, then the prior art that's being 
cited to the PTAB is then sent back to the examiner. So, those 
types of tools are available.
    What we often see at the PTAB is new art that is raised 
that just was not found by the examiners. In order to address 
that, that's why we are keenly focused on artificial 
intelligence, on rolling out new search tools. We have a global 
dossier where we can share search results across nations where 
there's related applications. We're now working with the FDA to 
make sure we're looking at all the right prior art when it 
comes to pharmaceutical patents.
    So, we're doing everything we can to make sure that the 
prior art is found in the first instance and it's not something 
new at the PTAB where the examiner was not aware of it.
    Mr. Massie. I yield back to the gentleman from Virginia.
    Mr. Cline. I yield back.
    Mr. Issa. OK. Well, that only leaves me, Madam, and about 
the right amount of time before people have to head to the 
floor.
    So, I first want to ask unanimous consent that a letter 
from the Foundation for Human Rights in Cuba and a letter from 
the Cuban Studies Institute supporting H.R. 1505 be put into 
the record.
    Mr. Massie. Without objection, so ordered.
    Mr. Issa. I ask unanimous consent to insert in the record 
an article from former PTO Director--my first PTO Director, I 
might add--James Rogan, the testimony from former PTO Director 
Bruce Lehman, and testimony from former USTR General Counsel 
John Veroneau.
    I'd recognize the gentleman from Kentucky for his UCs.
    Mr. Massie. Thank you, Mr. Chair.
    I ask unanimous consent to enter into the record an article 
titled ``No End in Sight for Rule 36 Racket at Federal 
Circuit.'' This is from IPWatchdog, January 29, 2019.
    Mr. Issa. Without objection.
    Mr. Massie. Then I have another unanimous consent request 
for--it's just one page. It's from--the source is Docket 
Navigator, ``Big Tech Companies Are the Biggest Users of 
PTAB.'' Top 20 petitioners since the PTAB was established.
    Mr. Issa. Additionally, materials from any Member that 
wanted to add to--the record will be open for five days in case 
you're not here at the end.
    Mr. Massie. Did I get approval--
    Mr. Issa. Yes, you do.
    Mr. Massie. OK. Thank you, Mr. Chair.
    Mr. Issa. Without objection.
    Mr. Issa. So, back to me.
    Director, I want to first thank you for the co-authorship 
of a letter concerning the American Fairness Act, which 
directly affects primarily AM radio, AM and FM radio, 
terrestrial, and the fact that they currently receive no 
revenue on that. I know that sometimes that's viewed as 
political, but I think from your important role of the 
constitutional responsibility that people be incentivized, that 
inappropriately is not an incentive.
    There's been a number of things brought up here today, and 
I want to just touch on them briefly. Many of the things in 
your proposed rulemaking, include items which have become part 
of an unofficial or a tradition or an operating procedure at 
the PTO. In other words, you've been doing them as though they 
were rules for a period of time, and now they're out there as 
comment.
    Do you think it is appropriate to put them out for further 
comment when, in fact, you're already doing them? Or should 
they have gone directly to rulemaking, since you're already 
doing them, without going through the statutory process that we 
on this side of the dais have legislated for you?
    Ms. Vidal. I believe the current process of creating 
precedential decisions and guidance provides more certainty and 
clarity among the PTAB judges.
    There are about 230 PTAB judges. They exercise my 
discretion by delegation. Without the ability to mark cases as 
precedential or to provide guidance, I would not have the 
ability to ensure they were exercising my discretion in the way 
I would exercise it. It would also mean that, depending upon 
which panel you got, you might get a different answer.
    So, I always consider the guidance that I put into place as 
interim until final. I always intend it to go through 
rulemaking. I believe wholeheartedly in notice-and-comment 
rulemaking. Even with the guidance--the first guidance I put in 
place was just meant to memorialize current practices; it was 
not meant to do any policymaking.
    Going forward, any policymaking--I've been very clear about 
not doing that in my judicial decisions. I believe in due 
process. People should be able to rely on what was in place at 
the time. So, any policymaking was not through my judicial 
decisions, through marking something as precedent, or through 
guidance, other than what an Article III court might do in 
setting precedent.
    Mr. Issa. I might note my question included a great many 
that preceded you. Is that correct?
    Ms. Vidal. Yes.
    Mr. Issa. OK.
    The comments today on additional areas of patentability--
I'm presuming that in your role as the, in a sense, the chief 
innovation overview person of this administration, that you 
would welcome further expansion and defining of patentability 
including in AI.
    Ms. Vidal. I would welcome the opportunity to work with 
Congress on any bill that addressed AI or patent eligibility.
    Mr. Issa. Are there any areas of patentability where you 
believe the Constitution would prohibit a statutory decision 
coming through this process? In other words, do you believe 
that we should limit our patentability expansion or 
clarification on any particular areas that ultimately would 
prove to be unconstitutional?
    Ms. Vidal. That is something I'd have to take offline with 
my team as well, who are experts in this area, but would 
welcome the opportunity to work with you on that.
    Mr. Issa. OK. Particularly, Mr. Massie mentioned it--but, 
observation of natural science is the discovery of that which 
God created, so to speak, patentable, or he was just observing 
that which has always been there since the beginning of time.
    I really would appreciate, I know Mr. Massie and others 
would appreciate your views on it. Because it is the intent of 
this Committee to go forward with defining those areas, some of 
which might prove to be expansions. Clearly, when we talk 
about, as we have today, artificial intelligence, some might be 
contractions of expectations. We'd like to work closely with 
you on that.
    Mr. Issa. I would ask--and you can do this off the record--
but for you to provide us with the names of individuals at the 
PTO or other government agencies in the Executive Branch, or, 
for that matter, other branches, that you met with in the 
process of preparing this notice.
    In other words, we'd like to understand a little of the 
deliberative process of how you came to the conclusion of what 
was included in your proposed rulemaking. I never really--I 
still look at it as proposed rulemaking because it certainly is 
a step.
    Mr. Issa. Earlier today, there was a lot of discussion 
about the 16 months going on in East Texas as a time. Isn't it 
true, based on your observation, that some courts--and I'll use 
West Texas for a moment--have chosen to set dates that preclude 
a PTAB, when, in fact, the actual date that they occur often 
gets delayed?
    Ms. Vidal. I can say that a lot of the dates that are set 
by courts do not stick.
    Mr. Issa. Pardon me? Say that again.
    Ms. Vidal. A lot of the dates set by courts for trial do 
not stick.
    Mr. Issa. So, in your rulemaking, how are you going to deal 
with--if it goes forward the way it's proposed, how are you 
going to deal with the fact that a historic time to trial may 
be inaccurate and judges--at least one, as somewhat sanctioned 
by the high court, was setting dates that it was clear were 
only for purposes of not allowing transfers and the like?
    Ms. Vidal. Our current practice already addresses that. The 
guidance I set forth on discretionary denial moves away from 
relying upon the date set for trial and moves toward looking at 
actual data. That's also addressed in the ANPRM.
    Mr. Issa. OK. I'm going to give you a considerable amount 
more for the record under the consideration of limited time, 
but I just want to highlight one.
    As you're aware, under the law known as Section 211, which 
protects the U.S.--the original owners of trademarks and 
businesses that the Cuban government confiscated without 
compensation, is not in compliance with the World Trade 
Organization.
    I've introduced H.R. 1505 that will bring the law into 
compliance with the WTO and continue to ensure the Cuban 
government is not enriched through its use of unjustly 
confiscated property who--rightful owners have not been 
compensated.
    If you would opine on the underlying merits of true owners 
based on--not on court or World Trade Organization, but based 
on the U.S. Constitution and your understanding of your role?
    Ms. Vidal. Is that one I can take offline?
    Mr. Issa. Absolutely.
    Ms. Vidal. Thank you.
    Mr. Issa. OK. With that, even though there are many, many 
more questions--and I thank the Ranking Member for his 
indulgence by not pointing out that I was over time--as I said 
earlier, we will leave the record open for additional 
questions, if you'll agree to take them for the record.
    Mr. Issa. Last, I hope that this will be, in a formal or 
informal fashion, a nearly quarterly go-forward. Obviously, 
this kind of hearing is not always possible, but if you would--
both the Chair and Ranking Member would appreciate it that your 
shaking your head is an affirmative that we will not wait 
another year before we have you back again.
    With that, this concludes the Subcommittee hearing on the 
courts. Again, I thank the gentlelady. We're adjourned.
    [Whereupon, at 10:32 a.m., the Subcommittee was adjourned.]

    All materials submitted for the record by Members of the 
Subcommittee on Courts, Intellectual Property, and the Internet 
can be found at: https://docs.house.gov/Committee/Calendar/
ByEvent .aspx?EventID=115813.