by Dennis Crouch
Last week, I wrote about the twin challenges facing the USPTO: a return-to-office mandate and a hiring freeze that could significantly impact patent operations. Today’s joint memorandum from OMB and OPM provides a rapid timeline for implementing these changes, with agencies required to submit detailed implementation plans by February 7th, 2025. [OMB OPM Come Home Memo].
The USPTO must develop a comprehensive plan addressing not just space and staffing, but also the “risks, barriers, and resource constraints” that could prevent expeditious return to in-person work. While patent examiners await official word from agency leadership about their specific situations, the clock is ticking on what could be the most significant operational change at the USPTO in decades.
As someone who practiced 20 years ago — at a time when USPTO examiner morale was low and the agency had difficulty recruiting quality candidates — I recognize that things are so much better today. (Do you agree?). For those of us outside the USPTO, now is the time to voice support both for the examiner community and uninterrupted USPTO operations — especially if you can provide Dir. Stewart with evidence that will aid efforts to water-down the negative effect of these orders.
The compressed timeline is particularly challenging for the USPTO, which has operated what was long considered the federal government’s model telework program. Despite several studies demonstrating the program’s effectiveness in improving examiner retention and morale, the agency now faces the daunting task of unwinding remote work arrangements that have been in place since 1997. As with other agencies, the program greatly expanded the last several years such that today over 95% of the USPTO workforce is outside the office.
Back up a Moment: The USPTO last week sent a memo to its workforce that included an allusion to “bargaining unit exceptions” — this is associated with the collective bargaining agreements between USPTO and its unions that allow for remote work. If these exceptions hold, then the majority of examiners will be able to continue to work from home through 2029. In my opinion, the USPTO’s union agreements, while significant, do not provide insurmountable barriers to implementation of a return to office mandate. The Commerce Department also sent out a memo on Jan 24 with guidance, but indicated that the memo “does not apply to the U.S. Patent and Trademark Office.” The meaning of that memo remains unclear. So far, examiners have not been given any orders or specific guidance on whether they are covered.
Of particular note here, supervisory patent examiners (SPEs) and PTAB judges are not covered by the union agreements and appear likely to face more immediate return-to-office requirements. Some SPEs may want to drop back down to an examiner role (with a lower salary) rather than relocating, which could create new challenges for patent quality review and examiner training programs. Of course, it is not clear that option would be made available. It may also be a good time for law firms to cherry pick top PTAB judges. This situation aligns with key motivations behind the return-to-office mandate. Part of this is about organizational cohesion, but a bigger part is about workforce reduction and replacement of those who left with folks who are more closely aligned with President Trump’s administration. If you recall, PTAB judges require appointment by the Secretary of Commerce.
The timing of this transition is particularly precarious given the USPTO’s leadership situation. Both the USPTO and Department of Commerce are currently led by acting directors – i.e., folks whose title alone show others in the White House that they do not have high levels of political capital. This will limit their ability to secure broad exemptions under the memo’s “other compelling reasons” provision. I think that the rubber will meet the road here if Dir. Stewart submits a Feb 7 plan that does not call-back a substantial number of examiners.
Where do they Go: The new OMB/OPM guidance requires agencies to determine “permanent worksites for all eligible employees currently teleworking on a full-time basis.” For the USPTO, this presents a unique challenge since many patent examiners were hired directly into remote positions and have never worked from a physical USPTO office. While commercial space is theoretically available nationwide, the memo emphasizes maximizing existing federal space and consolidating the federal real property footprint before acquiring new locations. The Atlanta office’s planned opening will provide very limited relief. Still, there is likely space to squeeze together PTAB judges and SPEs, many of whom already work in office a few days per month.
Isn’t this kind of fake news in light of the memo from the Department of Commerce found here: link to commerce.gov ?
The memo expressly exempts the USPTO from the executive order.
I don’t think so. That memo cancels certain Department of Commerce remote work programs. It then states that “This memorandum does not apply to the U.S. Patent and Trademark Office, the Office of
Inspector General, or the National Oceanic and Atmospheric Administration Commissioned Officer Corps.” It does not state that PTO employees will not be affected by the WH order. And, PTO employees have not been notified one way or the other.
Not sure I agree with your characterization of the memo from the 24th, but your point is taken. In any event, that memo, and its express exemption of the USPTO seems like relevant context with regards to the view of USPTO remote work by the Commerce Department. Glad it is at least present in the comments for those interested. Thanks.
Specifically, where in the memo does the USPTO get exempted. I can’t find that.
I think Robert is right. We should just do away with examination, it’s meaningless nowadays. Check off all the administrative stuff, but leave 101, 102, 103, and 112 for the tribunals to decide.
What I suggested was, as you say, handle the formalities and issue the patent without 101, 102, 103, 112 examination. But anyone who goes into court or PTAB must accept a referral back to the USPTO examination corps for the heavy lifting. And only when that is completed, can they continue into litigation.
The OMB sent out an email offer to buy out federal workers. I assume all USPTO employees received this? Does it actually apply to examiners and ptab judges?
How will the USPTO function if widely accepted?
I thought the USPTO was entirely self supporting based on its fee collection. If so, what rationale is there for targeting it with all these to and force reduction mandates?
I don’t think anyone knows the answers to these questions, not even the authors of the memo.
I’ve been a patent prosecution attorney for over 20 years and practiced some litigation.
I haven’t noticed a decrease in the quality of the work since the massive move to work from home. I think the PTO is very different than the Covid worker who just stayed home and probably don’t do much. I strongly support the PTO continuing to allow examiners to work from home.
There are lots of quality issues, which I will save for another day, but I don’t think they are related to examiners working from home.
The PTO is very different than the other agencies in that they have developed the remote work model for over two decades.
IPLaw 360 had a graphic and the vast majority of examiners live in two states – VA and MD, which happens to be right next to Alexandria. There are real pains in commuting in the DC area, but should not be a reason for a remote workforce. The USPTO should think differently about where the examiner’s in-person working location should be. (Hint: it does not need to be DC and it does not need to be one location).
One alternative to examiners not coming back to the office is a registration system – this eliminates the examiners. For over 20 years we are told of a backlog in examination, and every 5-year plan from the USPTO is uniquely unable to solve the backlog.
We are told remote work is efficient, but yet the backlog continues. We are told if RTO comes for the USPTO that the backlog will grow. We should not let these unfounded fears limit our thinking.
The evidence is clear that since the scalding GAO report in 2016, remote work has not solved the backlog. (800k in 2024 v. 500k in 2018) Instead remote work has made permanent the backlog. One direct way to end the backlog and avoid the RTO issue is through a registration system.
Less 1% of cases are litigated and only those patents that would be litigated would undergo a further examination by an interested party. This is already the de facto procedure with district court and IPR. Utility models around the world use a registration system and this is a good model to adopt.
Thanks for this comment.
There are certainly a lot of examiners who are within 50 miles of a USPTO office. The underlying assumption here is the examiners that have been remote will will start heading into the office – back to work – rather than quitting en mass. I don’t think I have the information to answer that question right now. I also agree with you that we shouldn’t let fears about the backlog prevent us from considering reforms that make lasting improvements to the system.
Regarding the backlog, I disagree with your conclusion that remote work has “made permanent the backlog.” The backlog was effectively gone a few years ago – at a time when we already had massive work from home. This is a constant gardener issue, and the USPTO lost its focus on the backlog over the past several years.
Your suggestion of a registration system – perhaps using AI model examination – will save for a separate post.
Agreed. I’ve notice no change in responsiveness or quality. p.s. to Kfredlake re the Hint, examiners already live in many states because there are now branches in many states. fyi
Opinion on a registration filing system: (1) more unexamined patents will issue; (2) leading to more litigation (a) at the PTAB, and (b) in court. That “1%” will become “5%.” Judges and litigants will be doing the examination rather than trained examiners. The backlog will have been moved from a place where it can be done well, to places that won’t be prepared to handle the workload. A better plan would be to require a USPTO examination of the “1%” by inserting a detailed examination into the litigation stack. If you want to sue, you have to live with a referral back to USPTO for examination.