Teghan O’Connell
When President Donald Trump was inaugurated on January 20th, 2025, he wasted no time getting to work. He signed a series of executive orders (EOs) and memoranda that set the tone for his second term as president. Two of these EOs are expected to have a significant impact on the US Patent [TO1] and Trademark Office. The first is the EO which mandates a hiring freeze on all federal civilian employees. The EO states that “no Federal civilian position that is vacant at noon on January 20, 2025, may be filled, and no new position may be created,” halting all hiring practices except under specific circumstances. [1] The second EO mandated that all federal employees must return to working in the office, five days a week. [2] The mandate is intended to tackle the work-from-home culture that has grown since the COVID-19 pandemic.
The hiring freeze poses a threat to the USPTO. As of December 2024, the USPTO had a backlog of 826,736 [3] patent applications, waiting for first action. [4] The USPTO’s solution to tackling a backlog has always been to hire more examiners and Supervisory Patent Examiners (SPEs) to review the patent applications, but with the hiring freeze, that is (at least temporarily) no longer a possibility. The former Director of the USPTO Kathi Vidal has said that the Office was planning to hire over 1,000 new examiners in the next few years to tackle the patent backlog. [5] Without the influx of examiners, the Office is unsure of how to proceed. Without more examiners, the USPTO’s backlog of applications will continue to grow, increasing first office action wait times and application turn around rates. For trademark filings, the concern is not first action pendency, [6] the impact would be on the subsequent wait times, which are already longer than their target. [7]
The second executive EO could cause this backlog of patent applications to double, or even triple. The Return to Office order (or RTO) mandates all federal employees work from the Office five days a week. The US Patent and Trademark Office is uniquely affected by this EO. Since 1997, the USPTO has had a “telework” environment. Employees at the USPTO, especially examiners, have been working remotely across the country for the past 30 years. [8] Today, it is estimated that 96.2% [9] or 13,000 of the office’s 14,000 employees work remotely. [10] The USPTO does not have enough physical office space for all these employees to return to the office, having sold their extra office space, saving the USPTO $50 million a year. [11] The teleworking culture has been so far ingrained in the operation of the USPTO, it is unclear how the Office is supposed to adjust to the change.
Many of the more knowledgeable and experienced employees at the USPTO are of retirement age, and there are concerns that they will leave rather than adjust to a new way of functioning as an office. Similarly, employees could leave to join the private sector instead of going into the office. [12] The idea of employees leaving is worrisome, as the USPTO is already struggling to keep up with the number of applications it is receiving. Examiners and Patent Trial Appeal Board judges can also take the federal employee buyout offered by the Department of Government Efficiency (DOGE). If the USPTO loses enough examiners and administrative law judges (ALJs), the Office could fall behind by an enormous number of backlogged patent applications without an ability to hire more examiners to help dig them out. It could also create a backlog of trademark applications, compounding the issue.
The fear of a mass exodus is not unfounded. As of February 10th, 2025, 65,000 employees have taken the buyout so far. [13] Labor trends show that “separation” rates in the federal government have been dropping in recent years, however this year will change that. So far, the number of federal employees reported to have taken the buyout is more than the separation numbers from November and December 2024 combined (28,000 and 26,000 respectively). [14]
No one knows how these Executive Orders will affect the USPTO until they both go into effect. The hiring freeze started on January 20th, but the RTO order was supposed to go into effect on February 24th. [15] As of now, the RTO order does not apply to the USPTO. The Commerce Department released a memo on January 24th, stating that the RTO order does not supersede collective bargaining agreements (which the USPTO has for its teleworking employees). [16] For now, USPTO employees are safe from having to return to the office, but there is no telling how long that will last. The hiring freeze is predicted to last around 90 days and serves as an opportunity for the Office of Management and Budget, the Office of Personnel Management, and the Department of Government Efficiency to create a plan to efficiently reduce the size of the federal workforce. [17]
[1] Federal Register, Vol. 90, No. 17, pg. 8247-8248 (Jan. 20, 2025), https://www.govinfo.gov/content/pkg/FR-2025-01-28/pdf/2025-01905.pdf
[2] Eileen McDermott, Report Indicates PTAB Judges Will Soon Be Required to Return to In-Person Work, IP Watch Dog (Feb. 5, 2025, 1:32 PM), https://ipwatchdog.com/2025/02/05/report-indicates-ptab-judges-will-soon-required-return-person-work/id=185638/
[3] USPTO, Patents Production, Unexamined Inventory and Filing Data December 2024, USPTO (Dec. 2024), https://www.uspto.gov/dashboard/patents/production-unexamined-filing.html
[4] Eileen McDermott, Trump Hiring Freeze Leaves USPTO Backlog Attack Plan in Limbo, IP Watch Dog (Jan. 23, 2025, 4:45 PM), https://ipwatchdog.com/2025/01/23/trump-hiring-freeze-leaves-uspto-backlog-attack-plan-limbo/id=185341/
[5] Eileen McDermott, Report Indicates PTAB Judges Will Soon Be Required to Return to In-Person Work, IP Watch Dog (Feb. 5, 2025, 1:32 PM), https://ipwatchdog.com/2025/02/05/report-indicates-ptab-judges-will-soon-required-return-person-work/id=185638/
[6] USPTO, Trademarks Data Q1 2025 at a glance, USPTO (Accessed Feb. 13, 2025 3:45 PM), https://www.uspto.gov/dashboard/trademarks/
[7] USPTO, Trademark processing wait times, USPTO (Accessed Feb. 13, 2025, 3:48 PM), https://www.uspto.gov/trademarks/application-timeline
[8] Eileen McDermott, Report Indicates PTAB Judges Will Soon Be Required to Return to In-Person Work, IP Watch Dog (Feb. 5, 2025, 1:32 PM), https://ipwatchdog.com/2025/02/05/report-indicates-ptab-judges-will-soon-required-return-person-work/id=185638/
[9] Winston and Strawn, Kathi Vidal Discusses Trump Administration’s Hiring Freeze and Return to Office Mandate with Law360, Winston and Strawn LLP (Jan. 31, 2025), https://www.winston.com/en/insights-news/kathi-vidal-discusses-trump-administrations-hiring-freeze-and-return-to-office-mandate-with-law360
[10] Eileen McDermott, Report Indicates PTAB Judges Will Soon Be Required to Return to In-Person Work, IP Watch Dog (Feb. 5, 2025, 1:32 PM), https://ipwatchdog.com/2025/02/05/report-indicates-ptab-judges-will-soon-required-return-person-work/id=185638/
[11] Dani Kass, Hiring Freeze, Ending Telework Would Devastate USPTO, Law360 (Jan. 23, 2025, 11:55 PM), https://www.law360.com/articles/2288062/hiring-freeze-ending-telework-would-devastate-uspto
[12] Dani Kass, Hiring Freeze, Ending Telework Would Devastate USPTO, Law360 (Jan. 23, 2025, 11:55 PM), https://www.law360.com/articles/2288062/hiring-freeze-ending-telework-would-devastate-uspto
[13] Katherine Faulders and Peter Charalambous, Judge says he will continue to pause Trump’s federal buyout offer, ABC News (Feb. 10, 2025, 3:28 PM), https://abcnews.go.com/US/judge-decide-fate-trumps-federal-buyout-offer/story?id=118642464
[14] Bureau of Labor Statistics, Job Openings and Labor Turnover- December 2024, News Release, Bureau of Labor Statistics, US Department of Labor (Feb. 4, 2025, 10:00 AM), https://www.bls.gov/news.release/pdf/jolts.pdf
[15] Eileen McDermott, Report Indicates PTAB Judges Will Soon Be Required to Return to In-Person Work, IP Watch Dog (Feb. 5, 2025, 1:32 PM), https://ipwatchdog.com/2025/02/05/report-indicates-ptab-judges-will-soon-required-return-person-work/id=185638/
[16] Jessica S. Palatka, Return to In-Person Work, Information Memorandum for the Department of Leadership on Return to In-Person Work (Jan. 24, 2025), https://www.commerce.gov/sites/default/files/2025-01/Information%20Memo%20-%20Return%20to%20In-Person%20Work_0.pdf
[17] Terina Allen, How Long Will The Federal Hiring Freeze Last? Implications For Government Employees, Forbes (Feb. 5, 2025, 9:21 AM), https://www.forbes.com/sites/terinaallen/2025/01/25/how-long-will-the-hiring-freeze-last--implications-for-federal-employees/