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Trump executive orders could imperil US progress in patent pendency

By Nick Robertson and Melissa Ritti

January 22, 2025, 23:06 GMT | Comment
An executive order by President Donald Trump requiring federal employees to return to their offices five days per week could wreak havoc on recent hiring gains at the US Patent and Trademark Office — gains that are credited for a reduction in patent pendency. Luring examiners away from the private sector has never been easy but the promise of remote work helped, two former USPTO directors told MLex.
The US Patent and Trademark Office on Friday touted a reduction in patent pendency — the amount of time it takes to gain an approval or an initial rejection of a patent application — from 20.5 months in 2023 to 19.9 months in 2024.

In a blog post, then-acting USPTO Director Derrick Brent partly attributed the small but steady improvement to the office’s successful push to hire more examiners.

In FY 2024, Brent revealed that the USPTO added 969 new examiners, surpassing its stated goal of 800. In FY 2025, Brent said a total of 500 new examiners have already been onboarded.

— Job perk —

Those examiners come from diverse backgrounds, mostly in STEM, and are required to have technical expertise in areas like mechanical engineering and biochemistry.

But specialization and experience come at a price, and it’s one that doesn’t always align with a public sector salary. That, in turn, has hampered efforts by the USPTO to maintain a highly skilled examiner corps capable of keeping up with the ever-increasing demand for examination.

To soften the blow, and in recognition of the reality that most workers won’t relocate for a job that pays less, the USPTO has consistently dangled remote work as a perk — and not just recently. Long before the Covid-19 pandemic, the USPTO has been allowing its examiners to do their jobs from wherever they’d like.

Commissioner for Patents Vaishali Udupa last summer openly courted potential new hires with the promise of telework in a Q&A, which hiring director Kiesha Bryant posted to the USPTO website. “Whether you want to come into the office or you want to work remotely from home — whether that’s in Alexandria, Virginia, or some rural area, by the beach, or up in the mountains — you can do that,” Udupa said.

Examiners have taken her up on that offer in overwhelming numbers.

A whopping 96-percent of eligible USPTO employees avail themselves of the telework option, according to a December 2024 US Office of Personnel Management report.

Former USPTO Director Kathi Vidal, who stepped down from her post in December and returned to private practice as a managing partner at Winston & Strawn, told MLex that that flexibility plays a pivotal role in the office’s ability to attract “the best talent across the country.”

The USPTO, in turn, has been recognized for its forward-thinking approach.

The office’s telework program has picked up awards from organizations like the Metropolitan Washington Council of Governments, the Telework Exchange, the Alliance for Work-Life Progress, the Mid-Atlantic Telework Advisory Council, the Telework Coalition and the Potomac Forum.

— CNIPA hiring blitz —

But an executive order signed Monday by President Donald Trump threatens to upend that bargain, by requiring federal employees to return to their offices five days per week.

While the EO gives agency heads the ability to grant exceptions “they deem necessary,” it introduces an element of uncertainty that could derail the USPTO’s hiring momentum.

Should that happen, it will almost certainly impact the office’s efforts to rein in patent pendency — a metric considered crucial to the health of any patent system.

When fewer patents are issued, portfolios are less robust; when portfolios are less robust, funding for startups is harder to secure. Eventually, venture capitalists will park their investments elsewhere.

Doubters of the significance of what a reversal of the USPTO's gains in patent pendency might look like need look no farther than China, which is meeting an increased demand by patentees by engaging in a hiring blitz of its own.

The China National Intellectual Property Administration now boasts an examiner corps 16,000 strong and claims to have processed just over 1 million patents in 2024. According to the National Science Board, the US in 2023 issued 346,152 utility patents with just over 9,000 examiners.

The departure of “senior, seasoned” examiners was singled out as a particular concern for former USPTO Director David Kappos, now a partner at Cravath, Swaine & Moore, who told MLex he has little doubt that those losses “will manifest in increases in patent pendency.”

— Collective bargaining —

The EO is likely to face legal challenges.

The telework championed by Udupa, Vidal and others is presumably reinforced in some capacity in the collective bargaining agreements recently reached between the office and federal employee unions.

All three unions which represent USPTO workers — two National Treasury Employees Union (NTEU) chapters (see here and here) and the Patent Office Professional Association, or POPA (see here) — inked new deals with the office in late 2024 and early 2025, following “decades of stagnation,” Vidal notes.

While it is unknown whether the telework arrangement is memorialized in those contracts, POPA President Kathy Duda, in a statement issued at the time the CBAs were finalized, lauded the USPTO’s commitment to “providing flexibilities that the 21st century workforce is demanding.”

— Golden age —

The return-to-work EO isn’t the only barrier to the USPTO’s quest to attract top talent.

Trump also issued an EO this week barring executive agencies from hiring new employees. The hiring freeze mimics one he implemented at the start of his first presidential term in 2017, which lasted four months and was widely panned by federal employees.

A survey by the NTEU of its members at the time found that nearly 60 percent said their workloads increased and nearly 90 percent said morale was down in their office. NTEU represents employees across the federal government in addition to the USPTO.

While details are still unclear, it appears that the freeze would apply to the USPTO unless the agency is granted an exemption by the director of the Office of Personnel Management.

The Trump administration held up the freeze as a way to cut government waste.

“The President will usher a golden age for America by reforming and improving the government bureaucracy to work for the American people,” the White House wrote in a summary of presidential actions yesterday. “He will freeze bureaucrat hiring except in essential areas to end the onslaught of useless and overpaid [diversity, equity and inclusion] activists buried into the federal workforce.”

— ‘Done with intent’ —

One former patent examiner told MLex that the combined effect of the EOs, should they come to pass, could devastate the office in more ways than one.

The USPTO headquarters in Alexandria and six regional offices are simply not large enough to accommodate examiners and other USPTO employees who have been working remotely, even if they wanted to return to the office. Additionally, he worried that the removal of a telework option comes at a delicate time, with examiners facing heightened scrutiny over high invalidation rates by the Patent Trial and Appeal Board and other factors.

Providing examiners with the ability to do their jobs remotely “is a longstanding policy that was done with intent,” generating cost-savings for the office while increasing their access to top-tier talent, he said.

Forcing those same examiners, not easily replaced, to choose between their jobs and the lives they have created for themselves hundreds, if not thousands, of miles away would be “a huge mistake,” he added.

As for whether an exception to the EO is on the horizon, it remains unclear whether that decision would fall to newly-appointed Deputy Director Coke Morgan Stewart (see here), who takes over for Brent until a new director is confirmed, or the Secretary of Commerce, where Howard Lutnick has been tapped by Trump but is yet to be confirmed.

For now, the examiner corps of the USPTO must watch and wait.

“I am grateful that President Trump’s In-Person Work Action recognized that the Action would be implemented consistent with applicable law and afforded USPTO leadership the ability to make exceptions they deem necessary,” Vidal said.

The USPTO declined comment for this story.

Please e-mail editors@mlex.com to contact the editorial staff regarding this story, or to submit the names of lawyers and advisers.

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