Trump Order Bars USPTO Patents Employees from POPA Membership But Will Not Yet Affect Telework

Just before Labor Day weekend, President Donald Trump issued an Executive Order excluding employees in the patents unit and Office of the Chief Information Officer (OCIO) of the U.S. Patent and Trademark Office (USPTO) from joining the Patent Office Professional Association (POPA), which represents patent examiners, or the National Treasury Employees Union Chapter 243 (NTEU 243), which represents non-professional employees.

The Order, titled “Further Exclusions from the Federal Labor-Management Relations Program,” came late last week before the long weekend and purports to be aimed at enhancing national security. The EO states:

“The agencies and agency subdivisions set forth in section 2 of this order are hereby determined to have as a primary function intelligence, counterintelligence, investigative, or national security work.  It is also hereby determined that Chapter 71 of title 5, United States Code, cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations.”

Chapter 71 of title 5 sets forth protections for federal employees with respect to the right to organize and bargain collectively via labor unions.

The Order does not affect trademark examiners at this time. It refers specifically to the “Office of the Commissioner for Patents and subordinate units, Patent and Trademark Office.”

The NTEU 243 represents federal workers across 38 departments and agencies, including paralegals, IT specialists, IT project managers, customer service representatives, legal instrument examiners, budget analysts, and other support staff in the USPTO.  

While some have reported that the EO disbands POPA, that does not appear to be how POPA is interpreting it. The union seems to be continuing outside the umbrella of the USPTO as they set up a third party dues payment system. Specifically, a message posted to POPA by the Union’s President, Patricia Duffy, and “the Officers and Delegates of POPA” three days ago indicates that it is still operating and working to navigate the Order:

“We are still here! The fight has just started to restore your bargaining unit rights. We are in the process of starting up a third party dues paying and communication platform. Stay tuned to POPA.ORG for ongoing updates and information.”

Image from Julie Burke

A memo circulated last week by USPTO Acting Director Coke Stewart was posted by Julie Burke to LinkedIn and indicates that neither this EO nor the EO issued March 27, 2025, titled “Exclusions from Federal Labor-Management Relations Programs” will “affect any employee’s duty station, salary, health and retirement benefits, work hours, award programs, or the like.”

Reporting by Bloomberg Law also indicated that Stewart has informed managers that the telework policy won’t be changed—likely because the agency simply does not have enough space to require all examiners to come back in person. However, newly hired examiners are now required to work in-office for one year.

Stewart’s memo also stated:

“The administration has determined that the Patents business unit and the Office of the Chief Information Officer (OCIO) business unit have ‘as a primary function … national security work,’ and that the federal labor statute cannot be applied to Patents and OCIO ‘in a manner consistent with national security requirements and consideration.’ As a result, employees in Patents and OCIO are no longer represented by unions (POPA and NTEU 243). These changes are effective immediately, and do not affect employees in other business units.”

A Fact Sheet published with the EO further explains the reasoning for the Order:

“Office of the Commissioner of Patents, Patent and Trademark Office (PTO). The Invention Secrecy Act tasks the PTO with reviewing inventions made in the United States, assessing whether their release could harm national security, and if so, issuing secrecy orders that prevent public disclosure. Effectively performing this work is essential to ensuring U.S. inventions with military or other national security applications do not fall into enemy hands….

….

Certain procedural requirements in Federal labor-management relations can create delays in agency operations. These delays can impact the ability of agencies with national security responsibilities to implement policies swiftly and fulfill their critical missions.

• Collective bargaining agreements (CBAs) remain in effect until their expiration, limiting agencies’ ability to modify policies promptly.
• Even when changes are permissible under CBAs, agencies must complete “midterm” union bargaining, which can delay the implementation of time-sensitive national security measures.”

In December 2024, POPA and former USPTO Director Kathi Vidal signed the first new CBA for the union in nearly 40 years. The new CBA had a five-year term and covered more than 9,600 of the agency’s patent-side employees.

National Security Rationale Questioned

Comments on LinkedIn and Reddit so far have questioned the premise that all patents have national security implications. Paul Fehlner, Chief Intellectual Property Counsel at Spyre, commented on Burke’s post about Stewart’s memo to employees that “this national security designation seems like a subterfuge to negate union representation. Occam’s razor tells us to look no further than that.”

And Jeannie Z. Taylor of Learning Design Alchemy wrote on Burke’s initial post about the EO that “I know an examiner who got that email yesterday while she was working on a patent for a new lipstick formulation. National security, my arse.”

Former USPTO Commissioner for Patents Bob Stoll also posted Stewart’s memo on LinkedIn and commented: “Very strange. It will be challenged.”

In a comment sent to IPWatchdog Stoll expanded on this thought, questioning the rationale for the Order: “As a former SPE in the security group before I was appointed Commissioner, I see no problems with examiners in the security group being members of POPA,” Stoll said. “Nor do I see a rationale for the rest of the examiners being barred from a union.  I don’t remember this ever being an issue and believe it is just another attempt by this Administration to destroy collective bargaining.”

POPA Sues

IPWatchdog reached out to both POPA and the USPTO for official comment on the EO and its implications but did not hear back as of the time of publication. However, just after initial publication of this article, POPA updated its website with a press release indicating it is suing the administration.

According to the release, the suit was brought by the National Weather Service Employees Organization and POPA and argues that “the USPTO does not assess whether the release of patent applications could harm national security. Under the Invention Security Act patent applications whose release might be detrimental to national security are referred to the defense agencies, who determine whether the invention should be kept secret.”

Furthermore, “only about 50 of the 600,000 patent applications received each year by the USPTO are ultimately subject to a secrecy order after being assessed by the defense agencies,” said the POPA release, adding that at best national security is an ancillary, rather than primary, function of “just 26 patent examiners of the nearly 9,000 examiners employed by the USPTO.”

Both groups allege that the Administration’s actions are retaliatory due to their vocal opposition to its efforts to end telework and reduce staffing.

This article was updated shortly after first publication to add POPA’s statement. 

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