by Dennis Crouch
USPTO Commissioner for Patents Vaishali Udupa released guidance yesterday regarding the agency’s implementation of President Trump’s return-to-in-person work executive order. The guidance explains that – in general – all remote workers will be ordered to return to office in coming days. But, the memo has a major exception it does not apply to employees whose telework arrangements are protected by collective bargaining agreements.
This exception is significant because the vast majority of USPTO’s patent examiners – both primary examiners and assistant examiners – are represented by the Patent Office Professional Association (POPA) under a collective bargaining agreement that expressly protects telework rights. In practice, this means the return-to-office mandate primarily affects supervisory patent examiners (SPEs), Patent Trial and Appeal Board judges, and other management positions not covered by the union agreement.
I should also be clear that the email does not state that examiners will continue to work remotely – only that employees protected by a relevant CBA “are not covered by this message.” The White House has stated that these CBAs in general are not enforceable. So, the examiners may simply be waiting for the other shoe to drop.
The USPTO has over 10,000 patent examiners working remotely, and a rapid move back to the office would have been an extremely disruptive endeavor. As we stand now, the office does not have sufficient space to house even the management as they return to the office. The first group to return full time are “routine teleworks” who already work in the office part time. Next will be workers on the 50-mile program that permits working remotely while maintaining residences within commuting distance. According to the memo, those individuals “will be notified on a rolling basis as office space is readied, beginning as soon as this week.” Finally, fully remote works who are part of the Telework Enhancement Act Program (TEAP) will also be ordered back into the office as space permits, also “beginning as soon as this week.”
The return-to-office mandate particularly affects Supervisory Patent Examiners (SPEs), who play a critical role in the USPTO’s examination process. SPEs typically rise to their positions only after serving many years first as assistant examiners and then as primary examiners, bringing substantial expertise in both their technical area and patent examination practice. Their role is vital: SPEs train new examiners, ensure consistency in examination standards across their art units, and provide essential quality control oversight. A SPE often serves as a new examiner’s mentor, helping them navigate the complexities of patent law, USPTO procedures, and the nuanced art of patent examination. It is a difficult learning path for new examiners and SPEs are an important cornerstone to that process.
The return-to-office requirement will undoubtedly create disruption for these experienced managers. One saving grace is that most SPEs currently reside within the 50-mile radius of a USPTO office – a legacy of requirements in place when they first joined the Office – which means many will face only increased commuting burdens rather than wholesale relocation. An open question remains whether the USPTO will allow SPEs to step back into primary examiner roles to maintain their remote work arrangements – a possibility that could preserve their examination expertise within the office but potentially create leadership gaps in art unit management.