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28 “Former USPTO Deputy Director Derrick Brent recently wrote that the Office is ‘now at an inflection point that requires us to build examination capacity to achieve our long-term pendency goals.’”
Donald Trump’s many executive actions on day one of his presidency included implementing a hiring freeze across the federal government. The order put hiring on hold for all Federal civilian employees, until such time as “the Director of the Office of Management and Budget (OMB), in consultation with the Director of OPM and the Administrator of the United States DOGE Service (USDS), shall submit a plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.”
The structure of the Department of Government Efficiency (DOGE) is being challenged in court, with complaints filed on January 20 by worker advocacy groups and private citizens. The DOGE was slated to be run by Elon Musk and Vivek Ramaswamy, but Ramaswamy was reportedly asked to leave this week.
What this all means for the U.S. Patent and Trademark Office (USPTO), which is still dealing with a patent backlog, is unclear. The current backlog stands at 826,736 unexamined applications/ 26.1 months total pendency for patents. The April 2024 Notice of Proposed Rulemaking (NPRM) on Setting and Adjusting Patent Fees predicted the backlog to increase to 820,200 by FY 2026 before decreasing to 780,000 by FY 2029.
In July, former USPTO Director Kathi Vidal said the Office was tackling the backlog in part via a concerted hiring effort. The agency hired 644 patent examiners in FY 23 and was on target to exceed its goal of hiring 850 examiners in FY 24. This push was planned to continue through FY 25.
Vidal in part blamed reduced hiring targets in response to a predicted slowdown in patent filings for 2020 and 2021, during the pandemic, for the significant increase in the backlog, which some have said represents an all-time high for the Office. The decrease in filings turned out to be “more modest and short-lived than expected,” said Vidal, and the reduced hiring targets left the agency unable to keep up.
More recently, former USPTO Deputy Director Derrick Brent, prior to his resignation and Coke Stewart’s appointment to take his place as Acting agency head, penned a Director’s Blog post explaining that the Office is “now at an inflection point that requires us to build examination capacity to achieve our long-term pendency goals.”
Hiring has typically played a key role in reducing patent pendency. In 2007, due to concerns about the USPTO backlog of 730,000 unexamined patent applications at the time, the Government Accountability Office (GAO) presented a report to Congress that found the Office’s hiring efforts were not sufficient to reduce the backlog. The backlog subsequently decreased over time, after various new approaches to hiring were implemented.
The USPTO told IPWatchdog the Office has no comment on the hiring freeze.
Back to the Office?
Trump has also mandated that federal government employees come back to the Office five days per week, something that would be virtually impossible for the USPTO, which has remote workers all over the country. Dennis Crouch reported today that the Office of Personnel Management (OPM) has now issued implementation guidance that Crouch noted includes “strict timelines and requirements that could force dramatic changes at the USPTO, where remote work has been a cornerstone of operations for decades.”
The USPTO began its telework program in 1997. As of 2023, nearly 13,000 of the USPTO’s approximately 14,000 employees worked remotely.
During IPWatchdog LIVE 2024, former USPTO Director Andrei Iancu criticized certain aspects of the Office’s remote work policy. Iancu said remote work has “done great things for the Office,” but “since the pandemic ended the vast majority are not coming back in… If these examiners come straight into a remote environment, culturally, they don’t bond as they used to in the past.”
Former USPTO Commissioner for Patents Robert Stoll replied that “[in person] work is not coming back…so, I think we need to find tools that simulate in person training and community,” and Iancu largely agreed but said there are other steps that can be taken—such as requiring the academy to be in person again and requiring two years of on-site work—that would help with USPTO morale problems.
There likely will be many challenges to Trump’s Return to Office mandate.
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Join the Discussion
28 comments so far.
Steve
February 21, 2025 03:45 pmSlowdown?
Is it just me, or has the pace of USPTO clerical work slowed down in the past few weeks? I have two power of attorney filings just sitting there, along with some other low-level clerical stuff just sitting there.
First and last time inventor
February 6, 2025 08:46 pmThe USPTO is a scam organization with uninformed admin staff and overpaid attorneys. they could care less about innovation, just dragging out the fees.
PattiM
January 29, 2025 01:07 pmMy son works for USPTO and is now in line to lose his job. Being encouraged to “resign” with dignity doesn’t pay for food and rent! Down the slippery road, with more to come!
ghostndragon
January 27, 2025 10:11 am@will I hope not, too. Not that I’d blame them. That said, it was out for me all weekend (at least it was each time we checked). We were able to file this morning, first thing. But the USPTO system status site never updated after 4:19 pm on Friday, and it only said the site had “degraded performance.” It does suggest that someone isn’t updating/being truthful about the function of Patent Center. I know that comes as no surprise to anyone, but they usually at least report outages on the system status site.
Will
January 25, 2025 05:39 pm@ghostndragon
Thanks. I was able to access it today. Hopefully, the bug is not a disgruntled IT person making a statement in response to the hiring freeze.
ghostndragon
January 25, 2025 05:18 pm@will Yes, Patent Center is down for me for more than 24 hours. A friend told me she had intermittent issues the morning of Jan. 24, 2025. It was intermittently unavailable and 100% nonfunctional the afternoon of the 24th, when I was trying to file PCTs, and remains so the afternoon of the 25th. I will be extremely annoyed about having to spend extra money to file 3 PCTs on Monday by mail and/or fax if it’s still down.
India Papa
January 25, 2025 10:40 am@F22strike
Read this carefully:
Bwahahahahaha
Pro Say
January 24, 2025 08:45 pmThanks Eileen. This sounds positive.
Anonymous
January 24, 2025 06:39 pmF22Strike: I’m aware of PTA. It does not apply for the first 14 months of pendency. It affords the PTO a 4-month delay to respond to any reply. It allows the PTO 4 months to issue a patent after the issue fee is paid. The applicant loses all that time. Return to a 17-year term calculated from issue date is better. 69% of applications do not get a first action within 14 months, and a loss of examiners will make it worse.
And regarding discussing incontestability, “big tech wouldn’t allow it” is not anything near a principled argument. The people rule, not big tech.
I’m focused on how the return to office policy will impact inventors. That impact matters more than how it will affect examiners. The purpose of the Office is not to employ a lot of people, but rather to spur innovators to publicly disclose inventions, backed by incentive of a strong property right.
F22strike
January 24, 2025 04:52 pmIndia Papa –
Read this carefully:
“37 CFR § 11.701 Communications concerning a practitioner’s services.
A practitioner shall not make a false or misleading communication about the practitioner or the practitioner’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
Now consider both the ethical problems and potential malpractice liability in failing to disclose current IPR statistics to a client who is considering filing a US patent application.
In my opinion, it is unconscionable conduct to allow a client to naively assume that a US patent will ensure against copying of the client’s invention in order to ensure that the client pays significant legal fees in the preparation and prosecution of a US patent application.
My recommendation is to disclose the current IPR statistics in your engagement letter. Then you will satisfy 37 CFR Section 11.701 and avoid a malpractice lawsuit if the client nevertheless decides to proceed with the filing and prosecution of a US patent application.
Trust me, jurors do not like lawyers who profit off of their unsuspecting and uninformed clients. There are plenty of plaintiffs’ attorneys out there that would love to file a malpractice case against a patent attorney after his/her uniformed client blew $50K in prosecution and $450K in IPR proceedings.
Will
January 24, 2025 04:28 pmIs anyone else having trouble accessing Patent Center today on the USPTO site?
F22strike
January 24, 2025 04:25 pmAnonymous –
You are apparently unfamiliar with patent term adjustment (PTA) under the current US patent law. It allows a calculated amount of days to be added to the term of a US patent to compensate for delays in the examination of an application on the part of the USPTO.
Big-tech would never allow the US patent law to be amended so that the validity of the claims of a US patent could become incontestable at some point during its term.
Eileen McDermott
January 24, 2025 03:31 pm@pro say – yes, so it sounds like it’s at USPTO management’s discretion under the EO, but it would result in litigation as a violation of the CBA. More to come eventually.
Eileen McDermott
January 24, 2025 01:16 pmI’ve reached out to POPA for clarification on this, Pro Say. On the one hand, the Trump memo alludes to the possibility of agency heads making exemptions, but the implementation order says this:
“Fairness requires that federal office employees show up to the worksite each day like most
other American workers. In addition, during the Biden Administration, federal unions attempted
to abuse the collective-bargaining process to guarantee full-time telework into the indefinite future
and forestall any requirement to return to the office.”
Pro Say
January 24, 2025 11:52 amQuestion for Eileen, Gene, Examiner/s, or anyone who knows:
Should the Patent Office not be granted an exemption from the draconian RTO (Return to Office) executive order, does the CBA (Collective Bargaining Agreement) explicitly or implicitly protect Examiners’ ability to work remotely?
In particular, for those who were previously granted such ability?
Or perhaps for those who have been remote for some specified period of time?
POPA needs to stand at the ready to go to court to obtain an RTO if the Trump administration doesn’t — for one reason or another — leave PTO remote work alone.
Anonymous
January 24, 2025 11:48 amSince the PTO cannot timely examine patent applications, stakeholders should discuss consequences to protect innovators. The first goal of our patent system is to protect the inventor, in turn promoting the progress of science.
First, patent term should once again begin when a patent issues. A patent term running 20 years from filing date no longer adequately protects the patent bargain, especially when the PTO can take 2-4 years to examine a patent. If copyrights can have a term of life of the author plus 70 years, inventors should be protected for a fixed time certain.
Second, we should be discussing patent incontestability. A patent’s term never vests. Validity can be challenged endlessly at the PTAB and in court. Apple can litigate more than a decade. This gives inventors no real protection. If a trademark can become incontestable by statute, then so too can a patent.
If we want errantly issued patents invalidated, then we should require they be challenged immediately after they issue. Government inefficiency cannot fix government inefficiency. If no one challenges validity for 3 years after a patent issues, the patent’s validity should become incontestable.
The PTO’s inability to staff adequately should not affect the patent bargain for the applicant. A term running from date of issuance solves the problem, when combined with a reasonable period of incontestability.
Bob Dickerman
January 24, 2025 10:31 amEileen, thank you for your reporting on the dumpster fire that is the Trump administration. Until Trump is gone and his cult withers and dies, it will be essential to document and explain to the public his and Musk’s attacks on the USPTO – and the rest of the government – each and every day.
Eileen McDermott
January 24, 2025 09:59 am@Michael – I hope this is directed to the general American woman and not to me directly as the author because it’s not a secret that no I most certainly did not.
John Doe
January 24, 2025 09:51 amThis is my personal opinion, not that of my employer. As you may be aware, patent examiners work on a production system, where the amount of work required increases with each promotion. Many examiners work voluntary (unpaid) overtime to meet production targets. An examiner being in an office building versus WFH won’t increase the amount of examination that gets done, or the quality. It is a solitary job. If USPTO requires examiners to RTO, at least 20% of examiners will not be willing or able to do that (spouse in the military, kids in school, etc.)For those that don’t live in commute distance to an office, getting local employment instead will be strongly considered. Examiners planning to retire in the next 5 years won’t bother with relocation to high cost of living areas near the offices. Losing the most experienced and productive examiners would have a very significant impact on the ability of the Office to examine parents, and would also significantly impact the ability to train replacement examiners If the hiring freeze is lifted. If RTO is required, it will have a long term adverse impact on the patent examination backlog.
Herb Wamsley
January 24, 2025 08:26 amThe confirmation hearing for Howard Lutnick to be U.S. Secretary of Commerce is scheduled for Wednesday, January 29, before the Senate Committee on Commerce, Science and Transportation.
https://www.commerce.senate.gov/2025/1/full-committee-nomination-hearing_2_3
Jimmy Smith
January 24, 2025 08:16 amWe the American people put idiots in charge. Now we get the results we deserve, idiocy and dysfunction.
Michael
January 24, 2025 06:06 am“I never thought leopards would eat MY face,” sobs woman who voted for the Leopards Eating People’s Faces Party.
Josh Malone
January 23, 2025 10:50 pmThey don’t need to be issuing any more patents until they sort out the quality and reliability issues.
India Papa
January 23, 2025 09:24 pm@F22strike – so your plan is to tell would be clients that “US patents are largely worthless”?
Why even bother working in IP? Time to go warm the bench I think.
Only way out is for USPTO to be exempted from RTO and the hiring freeze as soon as possible.
Brittany
January 23, 2025 07:16 pmI just learned USPTO isn’t even government funded. I’ve been an engineer for a number of years and am currently in the process of my own design patents. It’s disheartening to know the efforts that are being made to prevent innovation and get these applications out the way. If the workers have been working remote all this time, let them. We just care about our apps getting processed
Pro Say
January 23, 2025 05:13 pm. . . meaning that — without a quick exemption for the Patent Office — the backlog will exceed 1,000,000 applications by the end of Trump’s term.
Delivering yet another gut-punch to American innovation.
Time for us all to call, mail, and meet with our Senators, Representatives, and the White House itself before it’s too late.
F22strike
January 23, 2025 05:12 pmIn my opinion, the USPTO is a bloated, inefficient, and broken federal agency. Hopefully some of its patent examiners and trademark examining attorneys will quit rather than return to in-person work.
US patents are largely worthless since they can rarely be enforced. Any patent attorney that does not fully inform his/her clients of the IPR statistics may be violating 37 CFR Section11.701 of the USPTO Rules of Professional Conduct and exposing themselves to significant potential malpractice liability. With full disclosure to clients, the number of US patent applications that will be filed and need to be examined over the next decade will decline significantly. The remaining patent examiners can whittle down the backlog.
Current Litigator Former Prosecutor
January 23, 2025 04:55 pmFour more years of chaos. I wish the Trump admin would just focus on a few things at once.