by Dennis Crouch
The U.S. Patent and Trademark Office faces unprecedented challenges as recent executive directives force dramatic changes to its operations. I think that folks across the spectrum from right to left would agree that current changemaking at the White House is following a brutalist approach that treats all federal employees and agencies as interchangeable parts rather than recognizing their unique roles, specialized expertise, and operational requirements. Rather, it is following the old adage that to make an omelet you must break a few eggs. The White House appears willing to sacrifice individual careers, institutional knowledge, and what Reagan Appointee Sandra Day O’Connor termed a “carefully crafted” systems, in pursuit of its broader agendas and the hope of later instilling federal workers who are more favorable to conservative control. So far, USPTO Acting Director Coke Morgan Stewart has been silent except to indicate that she is fully implementing White House orders and requests.
A joint letter from the Intellectual Property Owners Association (IPO) and American Intellectual Property Law Association (AIPLA) to Congress highlights that the patent application backlog is at a high point. But, rather than addressing this critical backlog, recent policy shifts threaten to exacerbate delays and trigger a major exodus of experienced patent professionals from the system that is fully user-fee funded. FINAL-IPO-AIPLA-Joint-Letter-to-Senate-re-Hiring-Freeze-and-Return-to-Work-2.3.25. The letter asks that the USPTO be “exempted from executive actions that could further hinder its ability to meet its mission. . . . Specifically, the Hiring Freeze, the Return to In-Person Work mandate, and the Deferred Resignation Email to Federal Employees could severely restrict the agency’s ability to address its growing workload.” The letter avoids discussing other hot button issues, such as the USPTO’s full compliance with White House executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth.”
Of particular concern today is the new mandate requiring Patent Trial and Appeal Board (PTAB) judges to return to office by February 24, 2025, despite many judges having established remote working arrangements predating the pandemic. A large portion of PTAB judges reside more than 50 miles from a USPTO office, and the PTAB’s longstanding remote work policy has been instrumental in recruiting and retaining highly qualified judges with specialized technical and legal expertise. PTAB judges are not covered by the union agreement that protects examiners.
Patent examiners are also facing disruption on several fronts. Despite Elon Musk’s pronouncement that few bureaucrats work on the weekend, we know that patent examiners do work the weekends — with more office actions being sent out on Saturdays than any other day of the week.
While Commerce Secretary nominee Howard Lutnick has pledged to address the patent backlog, USPTO Acting Director Coke Morgan Stewart has remained notably quiet as examiners and judges face increasing uncertainty. The situation is particularly complex given existing collective bargaining agreements (CBAs) that protect telework arrangements. However, the White House has indicated its belief that those contracts agreed to by the Biden Administration are unenforceable.
The White House is also pushing federal employees to resign with a promise of continued pay and benefits through September 2024. The “Fork in the Road” email sent to 2.3 million civilian federal employees offered this unusual deferred resignation program — asking them to move out of their “lower productivity jobs in the public sector.” One difficulty with the program is that congressional funding for such a program only allows for a fraction of the payment being promised. Examiners have been warned by their union POPA against taking the resignation offer because of the extreme gaps in the explanation and likely implementation approach that would not be charitable to those to took the offer. Although the offer comes from the White House, the USPTO will almost certainly be asked to fund the employee resignation “buyout.” As the IPO-AIPLA letter emphasizes, that is a move in the wrong direction for USPTO activities.
The convergence of these challenges—from the hiring freeze to the remote work mandates and the controversial resignation program—threatens to fundamentally reshape the USPTO’s operational capacity at a critical time. The silence from USPTO leadership, combined with the uncertainty surrounding collective bargaining agreements and promised benefits, leaves us in a situation where institutional expertise built over decades could be sacrificed in pursuit of broader administrative goals.