Federal Hiring Freeze and Remote Work Concerns Relating to the USPTO

By: Luke Lynch

January, 24, 2025 - The start of the second Trump Administration started off with a flurry of executive orders and Presidential Memoranda. Two of the most controversial and potentially impactful are the Hiring Freeze[1] and Return to In-Person Work.[2] These specific orders could negatively impact the operations of the U.S. Patent and Trademark Office (USPTO) and could contribute significantly to the already record high patent pendency backlog. Determining if, how, and when these orders impact the USPTO is a top priority number one for many IP industry stakeholders. Below is a breakdown of what we know and what we are looking to find out.

Starting with the Hiring Freeze memo, it bars executive agencies from hiring new employees, and mimics one Trump implemented at the start of his first presidential term in 2017, which lasted four months and was widely criticized by federal employees.[3] A survey by the National Treasury Employees Union (NTEU) of its members at the time found that nearly 60% said their workloads increased and nearly 90% said morale was down in their office.[4] A significant issue facing the USPTO is the record high patent pendency backlog,[5] which they have attempted to address through increased hiring over the last few years. The current backlog stands at 826,736 unexamined applications[6] and 26.1 months of total pendency for patents.[7] The agency indicated that it hired 644 patent examiners in FY23.[8] In FY24, Deputy Director Brent revealed that the USPTO added 969 new examiners, surpassing its stated goal of 800. In FY25, then Acting Director Brent stated that a total of 500 new examiners had already been onboarded.[9] This push was planned to continue through FY25 with the USPTO planning to hire an additional 1600 patent examiners and having already brought in an additional 300 as of Monday, January 13, 2025. However, according to a patent examiner reddit thread, it appears that the USPTO has already started sending notices stating employment offers have been rescinded.[10] The impact could also extend to first year examiners who are still within their probationary period. While details are still unclear, it appears that the freeze would apply to the USPTO unless the agency is granted an exemption by the director of the Office of Personnel Management.[11]

 As for the Return to In-Person Work memo, it threatens to require federal employees to return to their offices five days per week. While it does give agency heads the ability to grant exceptions “they deem necessary,” it introduces an element of uncertainty that could derail many of the USPTO’s priorities as well as their ability to function as a government agency. On January 22, 2025, Charles Ezell, Acting Director of the Office of Personnel Management (OPM) issued an implementation guidance memo on federal workers returning to in-person work five days a week.[12] The memo states that OPM is implementing this policy under the Telework Enhancement Act of 2010, which requires agencies to consult with OPM in developing telework policies and tasks OPM with providing policy and policy guidance, as well assisting agencies with establishing teleworking goals.[13] The President’s memo directs agency heads to “take all necessary steps to terminate remote work arrangements and require employees to return to work in-person at their respective duty stations on a full-time basis… as soon as practicable.” It allows agency heads to “make exemptions they deem necessary” and directs that the directive “be implemented consistent with applicable law.”[14] The OPM memo stats that no later than 5:00 pm EST on Friday, January 24, 2025, the agency head or acting agency head should revise their agency’s telework policy issued under 5 U.S.C. § 6502(a)(1)(A) to state that eligible employees must work full time at their respective duty stations. While most USPTO employees’ duty stations are their homes/remote work locations, the OPM implementation guidance states that if an employee’s official duty station is more than 50 miles from any existing agency office, the agency should take steps to move the employee’s duty station to the most appropriate agency office based on the employee’s duties and job function. OPM recommends that agencies set a target date of approximately 30 days for full compliance with the Presidential Memorandum, subject to any exclusions granted by the agency and, notably, any collective bargaining obligations.[15]

Regarding collective bargaining obligations, all three unions which represent USPTO workers — two NTEU chapters (243 and 245) and the Patent Office Professional Association (POPA) — inked new deals with the office in late 2024 and early 2025.[16] According to private conversations the President of POPA had with us earlier this week, POPA believes that these labor agreements protect the right to telework for their members, as thousands of USPTO employees have been give “remote work” agreements, officially designating that their home is their official duty station. The USPTO began its official telework program in 1997. As of 2023, nearly 13,000 of the USPTO’s approximately 14,000 employees work remotely.[17] A whopping 96% of eligible USPTO employees avail themselves of the telework option, according to a December 2024 OPM report.[18] As for whether an exception to the EO is on the horizon, it remains unclear whether that decision would fall to newly appointed Deputy Director Coke Morgan Stewart[19] who will hold the title of Acting Director until a new director is confirmed, or the new Secretary of Commerce, Howard Lutnick who has been nominated by Trump but is yet to be confirmed.

There are a number of potential negative impacts on the Federal Government that would result from requiring the USPTO to freeze hiring and return to in-person work, one of which is increased costs. In fiscal year 2023 the agency reported that it avoided securing $68.9 million (annually) in additional office space as a direct result of all the USPTO’s full-time telework programs.[20] In FY 2023 the agency reported that it saved $1.58 million on salary related expenses alone.[21] In August of 2024, the agency relinquished the Remsen and Randolph buildings on its Alexandria, Virginia campus which was in addition to the release of the Randolph Square building in Arlington, Virginia.[22] According to the USPTO’s 2023 annual telework report, the Telework Enhancement Act Program (TEAP), made permanent on January 1, 2021, via the Telework for U.S. Innovation Act, allows eligible employees to permanently change their duty station to a location of their choice in the United States beyond 50 miles from the USPTO headquarters located in Alexandria, VA. The TEAP is administered by the USPTO’s TEAP Oversight Committee, which includes equal representation from USPTO management and each of the USPTO’s three bargaining units (the NTEU Chapter 243; NTEU Chapter 245; and POPA).[23] According to POPA, if teleworking USPTO employees were to be transferred back to USPTO in Alexandria, Virginia, the government would have to pay permanent change of station costs which usually exceed $100,000 per employee.

To add to the chaos, on January 22, 2025, President Trump signed a new Executive Order relating to Artificial Intelligence titled “Removing Barriers to American Leadership in Artificial Intelligence.”[24] The order revokes certain existing AI policies and directives that the Trump Administration believe act as barriers to American AI innovation, clearing a path for the United States to act decisively to retain global leadership in artificial intelligence. The order states that within 180 days, the APST, the Special Advisor for AI and Crypto, and the APNSA, in coordination with the heads of relevant agencies, shall develop and submit to the President an action plan to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security. The APST, the Special Advisor for AI and Crypto, and the APNSA, in coordination with the heads of relevant agencies, shall immediately review, in coordination with the heads of all agencies as they deem relevant, all policies, directives, regulations, orders, and other actions taken pursuant to the revoked Executive Order 14110 of October 30, 2023 (Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence). For any such agency actions identified, the heads of agencies shall, as appropriate and consistent with applicable law, suspend, revise, or rescind such actions, or propose suspending, revising, or rescinding such actions. Also, within 60 days of this order, the OMB Director, in coordination with the APST, shall revise OMB Memoranda M-24-10 and M-24-18 as necessary to make them consistent with the policy to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.

 It’s unclear how this directly ties into the USPTO’s initiatives. The USPTO has already issued guidance on issues like inventorship and the effects of AI growth on prior art, the definition of a person of ordinary skill in the art (PHOSITA), and patentability assessments, along with a comprehensive AI strategy report. The USPTO’s guidance could be interpreted as either supporting American AI innovation or potentially acting as an obstacle. This new Presidential directive, however, seems to add pressure on agencies like the USPTO to deliver a report within 180 days, which could be open to different interpretations. To complicate matters further and as referenced above, there is not a clear line of command yet in place for the USPTO. The confirmation hearing for the nominated Secretary of Commerce, Howard Lutnick, might take place as soon as next week. With no clear timeline for the nomination or confirmation of a new USPTO Director, it seems likely that Lutnick will be the one directing Acting Director Coke Stewart and, by extension, the USPTO to navigate what all this means.

[1] Trump Hiring Freeze Presidential Memo  

[2] Trump Presidential Return to Work Memo

[3] https://www.npr.org/2017/04/12/523473051/trump-lifting-federal-hiring-freeze

[4] https://www.mlex.com/mlex/articles/2287073/trump-executive-orders-could-imperil-us-progress-in-patent-pendency

[5] 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

[6] https://www.uspto.gov/dashboard/patents/production-unexamined-filing.html

[7] https://www.uspto.gov/dashboard/patents/pendency.html

[8] https://ipwatchdog.com/2025/01/23/trump-hiring-freeze-leaves-uspto-backlog-attack-plan-limbo/id=185341/

[9] https://www.mlex.com/mlex/articles/2287073/trump-executive-orders-could-imperil-us-progress-in-patent-pendency

[10] https://www.reddit.com/r/patentexaminer/comments/1i7dgkv/job_offer_rescinded/?rdt=33453

[11] https://www.mlex.com/mlex/articles/2287073/trump-executive-orders-could-imperil-us-progress-in-patent-pendency

[12] OPM Return to Office Guidance Memorandum

[13] OPM Return to Office Guidance Memorandum

[14] OPM Return to Office Guidance Memorandum

[15] OPM Return to Office Guidance Memorandum

[16] https://www.mlex.com/mlex/articles/2287073/trump-executive-orders-could-imperil-us-progress-in-patent-pendency

[17] https://ipwatchdog.com/2025/01/23/trump-hiring-freeze-leaves-uspto-backlog-attack-plan-limbo/id=185341/

[18] OPM 2024 Telework Report

[19] USPTO Coke Stewart Bio

[20] OPM 2024 Telework Report

[21] OPM 2024 Telework Report

[22] https://www.uspto.gov/sites/default/files/documents/TAR_2023.pdf

[23] https://www.uspto.gov/sites/default/files/documents/TAR_2023.pdf

[24] Trump Executive Order on Removing Barriers to American Leadership in Artificial Intelligence

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