The United States Patent and Trademark Office, or USPTO, occupies a unique role within the federal government because it is entirely fee-funded and, along with the Internal Revenue Service, is one of the few cashflow positive agencies.1 Additionally, unlike many agencies that only began to permit remote work in response to the Covid-19 pandemic, the USPTO adopted telework and remote work in the early 2000s and approximately 96% of the agency works remotely.2
Perhaps because its fee-funded status makes it a less attractive target for cost cutting, the USPTO has not been directly targeted by DOGE3 and the Trump Administration's cost-cutting measures, but instead has been affected by their more general efforts to change the federal government. For example, in response to an executive order mandating termination of diversity, equity, and inclusion (DEI) programs,4 the USPTO shuttered initiatives that sought to expand access to innovation and diversify the makeup of the inventor class.5 The USPTO also terminated "a small number" of non-examiner probationary employees as part of the Trump Administration's larger purge of probationary employees.6
The main effect thus far on the USPTO, however, has been the government's return to office mandate.7 Initially, there was significant concern that the mandate would force all USPTO employees back to a physical office despite the fact that employees may live hundreds or thousands of miles from DC and were hired as entirely remote employees.8 Stakeholders expressed concern that a forced recall of all USPTO employees would result in a significant number of employees, including patent examiners, being forced to resign because they were unable or unwilling to relocate.9 In such a case, patent pendency – the time it takes for a patent to issue from its initial filing date – would likely skyrocket as the workload stayed the same and the examiner corps shrunk.
Thus far, however, only employees who are not subject to bargaining agreements – such as administrative judges and supervisory patent examiners – have been subject to the mandate.10 But even that more limited mandate has created concerns among stakeholders.11 Administrative judges oversee both ex parte appeals of USPTO rejections and post-grant proceedings such as inter partes review (an administrative process of challenging an issued patent's validity). If the return to office mandate results in attrition, pendency of patent applications may increase (as fewer ex parte appeals are decided). And, while inter partes reviews are on a strict timetable set by statute,12 fewer administrative patent judges could mean that each proceeding is given less time for review and analysis, resulting in weaker decisions and a greater need for appeal.
This possibility seems increasingly likely as the USPTO recently told administrative judges to prepare for layoffs.13 Similarly, attrition among the supervisory patent examiners, who are often responsible for training junior examiners, may result in a less well trained examiner corps and an overall lower quality of examination, which could also increase the need for appeals and may make patent assertions (where issued patents are subjected to further scrutiny) a riskier proposition.
It still remains to be seen what the future holds, but the distinct possibility exists that some of the recent changes implemented by DOGE and the Trump Administration may result in significant, and potentially detrimental, effects on the USPTO and its operations.
Footnotes
1. See USPTO, FY 2024 Agency Financial Report, at 52 (2024) (reflecting net assets of $1.441 billion).
2. See Michael Shapiro and Annelise Levy, Patent Office Orders Teleworking Examiners Back to the Office, Bloomberg Law (Feb. 5, 2025), https://news.bloomberglaw.com/ip-law/patent-office-orders-teleworking-examiners-back-to-the-office.
3. As used herein, "DOGE" or the "Department of Government Efficiency" refers to former United States Digital Service ("USDS"). The USDS was a technology unit housed within the Executive Office of the President of the United States and established by Congressional appropriations. See AMERICAN RESCUE PLAN ACT OF 2021, PL 117-2, March 11, 2021, 135 Stat 4 (March 11, 2021). The USDS originally provided consultation services to federal agencies on information technology. The USDS was renamed DOGE by President Trump via executive order, and now is "dedicated to advancing the President's 18-month DOGE agenda," which purports to be a cost efficiency initiative. Exec. Order No. 14158, 90 Fed. Reg. 8441 (Jan. 20, 2025); Exec. Order No. 14222, 90 Fed. Reg. 11095 (February 26,2025).
4. See Exec. Order No. 14151, 90 Fed. Reg. 8339 (January 20, 2025).
5. See Theresa Schliep, Trump's DEI Cuts Threaten USPTO Innovation Goals, Law360 (January 31, 2025).
6. Dani Kass, USPTO Fires Some Probationary Workers, but Not Examiners, Law360 (February 28, 2025); Rebecca Beitsch, OPM directs agencies to fire government workers still on probation, The Hill (February 13, 2025).
7. Return to In-Person Work, Presidential Memorandum (January 20, 2025).
8. Dennis Crouch, USPTO's Remote Work Program Faces Potential Rapid Dismantling Under New Federal Guidelines, PatentlyO (January 28, 2025).
9. Id.; see also Eileen McDermott, What Do the Return to Office and Hiring Freeze Orders Mean for Examiners and SPEs?, IPWatchdog (February 9, 2025) ().
10. See Eileen McDermott, What Do the Return to Office and Hiring Freeze Orders Mean for Examiners and SPEs?, IPWatchdog (February 9, 2025) (indicating that the return to office mandate would include managers, supervisors, and PTAB judges, but that examiners and other individuals covered by a collective bargaining agreement would be exempt).
11. See id. (noting potential for "devastating" effect if supervisory examiners, who are not subject to a bargaining agreement, elect to resign or take a buyout option).
12. See 35 U.S.C. § 316 (requiring regulations mandating that inter partes reviews reach a final determination within a year of the proceeding's institution).
13. Theresa Schliep, PTAB Judges Told To Get Ready For Layoffs, Law 360 (March 21, 2025).
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