New Year, New Models: How the Pandemic May Forever Change Practice at the USPTO

“The USPTO has thrived during this time in which the majority of its workers have worked remotely. From a performance standpoint, the USPTO met all of its 2020 targets.”

United States Patent and Trademark Office - year brought unprecedented changes as to how the United States Patent and Trademark Office (USPTO) conducts business. Prior to the pandemic, the USPTO was already a trailblazer with employees teleworking. As of 2018, 8,824 patent positions, roughly 94% of the total positions eligible for telework, already worked from home. On March 15, 2020, however, the USPTO closed all of its offices to the public, and subsequently transitioned its entire workforce of roughly 13,000 people (which includes patent examiners, trademark examiners, and other staff), to full telework, practically overnight. Since the majority of these positions were already teleworking, the transition was almost seamless.

The pandemic also changed some USPTO practices as a result of various government guidelines, including, for example, guidance to social distance. For example, on March 13, 2020, the USPTO suspended all oral hearings and in-person meetings, including in-person examiner interviews. As of that date, these hearings and meetings are being conducted remotely by video or telephone. With most practitioners and clients based outside Virginia, meetings were already performed telephonically. Thus, these changes had minimal negative impact on practitioners and on patent examiners. The USPTO also waived the requirements for an original handwritten signature for some documents, such as an inventor’s signature for an oath or declaration, and instead inventors may sign electronically using a so-called “S-signature.” In general, this appears to be a positive development because S-signatures are more practical in this digital age. S-signatures also eliminate the burden of printing, hand signing, then scanning and emailing (or returning by regular mail) the signed documents.

Performance Perks of Staying Home

The federal government estimates that a vaccine for the coronavirus will be widely available to any member of the public by the end of June 2021, although the timing is in flux. Thus, it begs the question of whether or not the USPTO will (or should) revert back to pre-COVID practices once the medical community reaches a consensus that COVID restrictions may be lifted, possibly later this year. At least some evidence suggests that maintaining these new workforce policies at the USPTO would be beneficial.

In addition to the developments discussed above, there also appears to be overwhelming evidence that workers are more productive working from home, rather than from an office. A 2015 Stanford study where 16,000 employees worked from home for nine months found that working from home led to a 13% performance increase. Other studies conducted during the pandemic have found that, on average, people who work from home are 47% more productive.

The USPTO has thrived during this time in which the majority of its workers have worked remotely. From a performance standpoint, the USPTO met all of its 2020 targets. For example, although the patent average first action pendency increased from 2019, from 14.7 months to 14.8 months, this number was still below the USPTO’s 15-month target. Patent average total pendency also dropped in 2020 to 23.3 months from the average pendency of 23.8 months in 2019. The USPTO has also done quite well financially. For instance, although patent filings dropped from 667,000 in 2019 to 653,000, earned revenue increased by $200 million, according to the most recent USPTO Performance and Planning Annual Report. Although these numbers are merely a snapshot into the USPTO’s overall performance, it suggests that the USPTO can perform quite well while implementing the current “safer at home” measures.

New Normal?

With telework providing an average increase of worker productivity, and with the USPTO not only exceeding its 2020 goals but thriving during this unprecedented time, I think it is safe to say that changes at the USPTO may be here to stay.

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