Brett Trout
The U.S. Patent and Trademark Office (USPTO) is facing significant upheaval following an executive order requiring certain federal employees to return to the office. For the Patent Trial and Appeal Board (PTAB) Supervisory Patent Examiners (SPEs), and new Patent Examiners (NPEs) this directive has sparked concerns about efficiency, staffing, and the agency’s ability to meet its mission.
The Return-to-Work Directive
The incoming Trump administration has mandated a return to in-person work across federal agencies. The Office of Personnel Management (OPM) has stated that government workers must return to the office to align with private-sector expectations. However, the Commerce Department has stated that this mandate does not directly apply to the USPTO, leaving the precise application of the mandate to the USPTO in limbo?.
PTAB Chief Judge Scott Boalick has clarified the order somewhat by informing administrative patent judges (APJs) that they should expect to return to the office by February 24?. However, the return-to-work order does not apply uniformly to all USPTO employees. While it appears Supervisory Patent Examiners (SPEs), and new Patent Examiners (NPEs) having less than one year on the job may have to return to the office, most remaining patent examiners are covered by the Patent Office Professional Association’s (POPA) collective bargaining agreement (CBA) and are therefore exempt from the return to work order.
Potential Consequences for the PTAB
While the return-to-work order could cause APJs, SPEs, and NPEs to leave their jobs rather than relocate, many SPEs and NPEs are already located close enough to their offices to simply commute. If APJs decide to leave their jobs, they would have to be quickly replaced to prevent the PTAB from having to be more selective in the cases it undertakes.
Broader Implications for the USPTO
Similarly, if a large number of SPEs and NPEs leave and cannot be quickly replaced, the current backlog of unexamined patent applications (currently over 826,000) could increase?. Conversely, if a significant SPEs and NPEs do not leave the USPTO’s newly downsized office space may have a difficult time accommodating everyone in the office at the same time.
Looking Ahead
With the nomination of Howard Lutnick as Commerce Secretary moving forward, the USPTO is likely to see new leadership soon. Whomever the new USPTO Director is, they will have to navigate wisely and embrace to calm these newly choppy seas?. For now, patent professionals and industry stakeholders should closely monitor developments and advocate for policies, such incorporating artificial intelligence into the patent review process, that balance efficiency and flexibility with the office’s core mission of quickly vetting and issuing patents covering the latest technology.
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