The Future of the USPTO: Workforce Disruptions, Policy Shifts, and the Growing Backlog
The U.S. Patent and Trademark Office (“USPTO”) faces unprecedented uncertainty as conflicting mandates on telework, hiring freezes, and return-to-office requirements disrupt operations. Despite the immense success of the USPTO’s telework program, the agency was not spared from the Trump administration’s deferred buyout program. Contradictory mandates, inconsistent communication, and other factors are frustrating patent examiners, USPTO staff, and patent practitioners—leaving the future of the USPTO uncertain.
According to the 2023 Telework Annual Report, 96% of the USPTO’s 13,410 employees (12,894 people) work from home. The telework program, which has been in effect since 1986, has allowed the USPTO to attract and retain examiners, reduce office space costs, and improve efficiency. Requiring examiners to return to USPTO’s Alexandria campus or one of its five satellite offices could drive attrition, increasing its unexamined patent backlog.
Here’s a closer look at the key issues shaping this debate:
Hiring Freeze
On “day one,” Trump issued an executive order imposing a blanket hiring freeze for federal employees, including those at the USPTO. The USPTO has been actively hiring Examiners for many years in an effort to reduce the backlog of unexamined patents. The hiring freeze has delayed the onboarding of many new hires, which will likely further increase both the backlog and the total pendency for patent applications.
The unexamined patent backlog currently stands at 826,736 unexamined applications with a total pendency of 26.1 months. Before the pandemic, backlog and total pendency were declining. However, examiner attrition and terminations due to unmet production quotas have caused the backlog to grow. The number of new filings has remained consistent during this period, creating a backlog that is now at a historic high.
To combat this, the USPTO hired 644 patent examiners in 2023 and around 850 examiners in 2024. However, many of the 850 examiners hired in 2024 are subject to the hiring freeze and were given notice that their start date is deferred or delayed indefinitely.
2. The “DOGE Mandate” to Return to the Office
Initiatives to reduce the USPTO backlog have been further frustrated by the “DOGE mandate.” DOGE refers to the Department of Government Efficiency, led by Musk and created by executive order on “day one” of the 2nd Trump administration. Musk immediately issued a directive insisting that all federal employees, including those at the USPTO, return to in-person work.
While Musk touts this as a necessary step to bolster collaboration and efficiency, many argue that this abrupt reversal undermines the progress made during the telework era. Critics point out that the mandate runs counter to the broader trend of flexible work arrangements adopted across much of the federal government—especially given the workforce reductions anticipated under the deferred buyout program.
Requiring USPTO’s heavily remote workforce to return to in-person work will likely reduce examiner retention, worsening the backlog. Eliminating the telework option will also inhibit the agency’s ability to attract well-qualified examiners, increasing the backlog and total pendency.
3. POPA’s Interpretation: Exempting Patent Examiners
The USPTO and the Patent Office Professionals Association (POPA), which represents patent examiners and other staff, signed a new collective bargaining agreement (CBA) on December 11, 2024. This agreement incorporates by reference various Memoranda of Understanding (MOUs) relating to the USPTO’s telework program. POPA President Kathy Duda argues that patent examiners should be excluded from the return-to-office mandate because of the latest CBA and statutory provisions in 5 U.S.C. §§ 5711(f),(g) (POPA Update 2/4/2025). This interpretation suggests that examiners have contractual and legal protections that justify continued telework.
4. OPM’s Directive: Ignoring Collective Bargaining Agreements?
On February 3rd, the Office of Personnel Management (OPM) instructed agency heads to disregard collective bargaining agreements protecting telework, raising concerns about legal compliance. The OPM guidance calls into question the enforceability of union-negotiated telework arrangements that conflict with “management rights” (Meritalk). In addition, Trump asserted in a January 31 memo that any new contract with federal unions signed “in the final days of the prior administration’s tenure” is null and void.
OPM’s guidance appears to conflict with the Information Memorandum for Department Leadership on Return to In-Person Work, issued on January 24 by Jessica S. Palatka, Deputy Assistant Secretary for Administration (DASA) and Acting Chief Human Capital Officer (CHCO). This memorandum rescinded the December 2021 U.S. Department of Commerce Telework and Remote Work Plan. Since the USPTO’s telework program is governed by separate MOUs, the agency is explicitly excluded from the memorandum’s scope. While the memorandum indicates that collective bargaining agreements will remain in force, department leadership is instructed to “continue to explore methods for maximizing in-person work.” Notably, Palatka was appointed by Biden.
5. Examiners: A Mixed Message on Telework
Contrasting with the POPA interpretation and compounding employee confusion, some patent examiners have already received orders to return to the office. According to Bloomberg Law, “routine teleworkers”—those who work from USPTO offices once or twice per week—were told on February 4 to be at their desks Mondays through Fridays starting February 10. The USPTO has also indicated that administrative patent judges (APJs) on the Patent Trial and Appeals Board (PTAB) must return to in-person work.
Routine teleworkers typically live within 50 miles of a USPTO facility. Some receive temporary housing during in-office work. The new mandate forces them to either endure a 100-mile round-trip commute, relocate to Alexandria, or depend on USPTO-provided lodging—none of which are ideal options. More importantly, these mixed messages are fueling anxiety among USPTO employees—many of whom have enjoyed telework for their entire careers and are in no position to relocate.
6. The Commissioner for Patents Takes Deferred Resignation
Amid the confusion, acting Commissioner for Patents Vaishali Udupa resigned this week by way of a deferred resignation. Udupa’s abrupt departure—at a time when USPTO employees need consistent leadership—raises questions about the broader implications of current workforce management decisions and may signal to other employees that it is time to leave government service.
7. How Will This Impact the USPTO Workforce?
The USPTO examiner corps consists of highly skilled professionals, many of whom have alternative career options outside government. There is no doubt that the confusion and fear of being forced to move their families, face long commutes, or spend extended periods away from home will reduce the USPTO’s workforce.
POPA believes that the Patent Examiner CBA will withstand DOGE scrutiny. The National Labor Relations Board (NLRB) recently limited management rights in such circumstances, ruling that employers must bargain with unions before making changes to working conditions—unless the union has clearly waived its right to bargain, a ruling that undercuts OPM’s position (see Endurance Environmental Solutions, LLC, 09–CA–273873 (2024)). However, the Trump administration fired NLRB Chair Gwynne Wilcox and top lawyer Jennifer Abruzzo, leaving open the possibility that a future NLRB chair might enforce DOGE’s mandate despite conflicting precedent.
In addition, the current POPA CBA was signed on December 11, 2024 and could be found “null and void” if courts agree with the Trump position that the USPTO’s CBA was signed in the closing days of the Biden Administration to “constrain the new president.”
Finally, 5 U.S.C. §§ 5711(f),(g) allows the USPTO to “test” a telework program, potentially giving the OPM or DOGE grounds to assert that the testing period has concluded and that all patent office employees must return to the office.
Federal courts have enjoined the enforcement of many DOGE initiatives. While it remains unclear whether a sitting president or his appointee has the authority to usurp Congress’ constitutionally conveyed “power of the purse” (see Art. I, Sect. 9, Clause 7), DOGE and Musk continue to push forward. In the meantime, the return-to-work mandate pits agency management against labor representatives, creates uncertainty for USPTO employees, and increases both the backlog of unexamined patents and the total pendency of patent applications.
8. What’s Next for the USPTO?
The USPTO finds itself at a “fork in the road.” Leadership must balance the drive to reduce the federal workforce through deferred buyouts and hiring freezes with return-to-work mandates and the need to maintain a stable, effective operational model. It remains to be seen whether Trump will appoint a Commissioner for Patents who understands the need to balance the USPTOs need for qualified Examiners and the needs of qualified Examiners and acts on behalf of both patent examiners and patent holders.
9. What Does This Mean for You?
Holding a patent is not merely a legal formality—it is a strategic asset that significantly enhances a company’s ability to secure funding and drive growth. Empirical evidence suggests that firms with robust patent portfolios are perceived as lower risk and more innovative. Companies with strong patent portfolios can receive 30% to 50% more venture capital funding compared to non-patenting firms and are more likely to attract follow-on funding. This reflects investor confidence in the market potential of patented technology and serves as a credible signal of future profitability and technological superiority.These data underscore that patents not only protect intellectual property but also enhance a company’s financial prospects and competitive positioning.
Patent holders should expect more delays in patent prosecution as the USPTO backlog increases. Even if the USPTO’s telework program is eventually spared from the DOGE mandate, uncertainty will force many examiners to seek employment elsewhere—leaving the agency understaffed, unable to keep pace with new filings, and ultimately pushing the backlog unexamined patents even higher while slowing prosecution and reducing allowance rates.
Companies with established portfolios may face less investor scrutiny; however, startups and private companies developing new technologies may find it difficult to secure initial and follow-on funding if patents remain trapped in the USPTO backlog, slowing innovation and growth of the technology sector companies.
