The election of US President Donald Trump has already provided many high-profile developments in his short time in office. Among the wide-ranging measures that have been introduced are policy changes that may impact the performance and operation of the US Patent & Trademark Office (USPTO), and subsequently may affect the prosecution of US patent and trade mark applications by both domestic and international applicants.
In this article we will discuss the two most relevant actions: firstly, the order for federal workers, including USPTO administrators and examiners, to return to work at the office; and secondly, a freeze on the recruitment of USPTO staff.
What is the USPTO?
The United States Patent and Trademark Office (USPTO) is the federal agency responsible for granting patents and registering trademarks in the United States. The USPTO operates within the department of commerce, examining patent applications to explore whether inventions meet the requirements for IP protection. The agency also provides numerous resources for those within the intellectual property space, such as inventors and patent attorneys, providing guidance alongside a public accessible database of existing patents and trademarks.
Trump Policy: Ending Remote Work at the USPTO
Regarding the request for existing staff to return to work in the office, while the headlines suggest that this is relevant across all Federal agencies, including the USPTO, there is the possibility of agency heads making “exemptions as they deem necessary”. However, the emphasis is still on the agency heads to terminate remote working where possible. In a memorandum issued by the White House’s Office of Personnel Management, it was stated that the USPTO no longer permits regular and recurring remote working and therefore employees should work full-time at their respective work sites or offices. This does not supersede existing collective bargaining agreements but there is an obligation on the agency heads that these collective bargaining agreements should be brought into compliance with the new requirement to work in the office where possible.
This could have a particular impact at the USPTO because at present, over 90% of employees have a remote working agreement, meaning that around 9,000 examiners work remotely full-time within the US. Furthermore, as a result of this, the available space at the USPTO offices has been significantly reduced over previous years, accelerated by the Covid-19 pandemic, such that if the employees do return to office-based work there will be insufficient space for these employees. Therefore, there is a concern that the USPTO will be unable to retain all employees if they are all forced to return to office-based work under the action.
USPTO Recruitment Freeze Following Trump Election
The USPTO are aiming to reduce the prosecution period for an application to obtain patent protection by positively recruiting new staff, however this recruitment looks to be halted as a result of a freeze ordered by President Trump on the filling of any Federal civilian position that is vacant as of 20 January 2025. This slowdown on patent prosecution may impact the US economy, as the USPTO itself estimated in 2019 that industries that intensely use intellectual property, including the filing of US patents, made up 41% of domestic economic activity and directly supported around 33% of all US employment. It remains to be seen if the reduced rate of patent prosecution, and therefore the rate at which patents grant in the US, will affect the productivity of these industries.
Trump Administration’s New USPTO Leadership and Policy Direction
In a further indication of President Trump’s desire for change, he has appointed a new deputy director, without confirmation from the US Senate. The new Deputy Undersecretary of Commerce for Intellectual Property and Deputy Director of the USPTO, Coke Morgan Stewart, will likely lead the USPTO for up to 300 days and has full authority to implement the new instructions regarding ordering the return to working in the office and the freeze of recruitment. This could be a signal that the new Trump administration plans to directly affect intellectual property policy directly and with immediate effect.
In summary therefore, initially, it is likely that there may be some further delay in the granting of patent applications by the USPTO while the impact of requiring existing examiners to be office-based is implemented. It is likely that only after this exercise has been performed, will the retention of existing staff be assessed and then a decision will have to be made with regard to continuing recruitment, affecting the rate of patent, trade mark and design prosecution in the interim.