The impact of the new Trump administration on the U.S. patent system (Second part)

JSTORIES ー Recent headlines from America are teeming with news of abrupt policy changes, initiatives and drastic personnel cuts to a number of administrative agencies in America.This article will examine the predominant initiatives, changes and cuts with respect to the U.S. Patent System to expect from the new Trump Administration in the coming months and years.

Please refer to the first part here.

On January 20, 2025, the Trump Administration issued an Executive Order directing that all U.S Government employees must return to work (rather than work remotely) and a separate Executive Order prohibiting the hiring of new employees except in very specific circumstances.   The impact of the back to work Executive Order will vary based on whether a particular USPTO employee is covered by a Collective Bargaining Agreement.  The status of 3 types of USPTO employees is summarized below in Fig. 1.

With respect to the hiring freeze executive order, before President Trump was sworn into office, the USPTO had sent approximately 600 offer letters to hire more examiners in an attempt to reduce the unexamined patent application backlog. In response to the hiring freeze executive order, the UPSTO rescinded all of the offer letters.  

Separately, the impact of the back to work executive order depends on the category of the USPTO employee.  As shown in Figure 1, on the prosecution side of the USPTO, ordinary examiners (Case 1) are covered by a Collective Bargaining Agreement, therefore, they can continue to work remotely despite the Trump Administration’s return to work order.  However, Supervisory Examiners (Case 2) are not covered by a Collective Bargaining Agreement, therefore they must return to the office.  The concern among many commentators is that many of these Supervisory Examiners live far from either the USPTO or one of the USPTO’s satellite offices, therefore, they might be unwilling to move and therefore may resign.  Obviously, this would exacerbate the USPTO’s backlog of unexamined patent applications and would have a negative impact on patent quality.  As of the time this article is published, it is unclear how many Supervisory Examiners will leave the USPTO as a result of the Trump Administration’s back to work order. 

On the PTAB side of the USPTO,  Administrative Patent Judges decide, inter alia, inter partes reviews.  Inter partes reviews have consistently been one of the strongest weapons an accused infringer can bring to bear on a patent of questionable validity asserted in a U.S. District Court or in the International Trade Commission.  However, without a collective bargaining agreement, Administrative Patent Judges can no longer work remotely according to the Trump Administration’s Executive Order.  Therefore, the ranks of the Administrative Patent Judges could be severely depleted as a result of the Trump Administration’s back to work order.  Just as with Supervisory Examiners, it is unclear at this time how many Administrative Patent Judges have left or will leave the USPTO in response to the back to work order.  

Figure 2 below provides a summary of what the impact of the Trump Administration’s hiring freeze and no remote work executive orders will be on the USPTO.

To summarize, for those with patent applications pending in the USPTO, expect longer delays, lower patent quality (with fewer supervisory examiners) and an increase in the patent backlog.   On the PTAB side, with fewer Administrative Patent Judges, expect longer appeals timelines, expect that inter partes reviews will take longer to complete and that the USPTO may grant fewer requests to institute inter partes reviews for lack of sufficient personnel. 

On the legislative side, there are a number of bills pending in Congress, some of which would have a substantial impact on the U.S. Patent System if they are passed.  The follow is a summary of the content of each of these bills:

In my view, the RESTORE Act, if passed would have the largest impact on the U.S. Patent System by giving patent holders the ability to enjoin infringers regardless of whether they practiced the patent or not.  Most if not all of the big tech companies will strongly oppose passage of the RESTORE Act.  In their view, this would give too much leverage to non-practicing entities in patent infringement actions.  Therefore, if Congress seriously considers passing the RESTORE Act, I expect that the big tech companies will lobby strenuously against its passage.  My estimate of the likelihood that each of these bills will be passed (i.e., enacted) by Congress is summarized below in Figure 3.

In conclusion, the U.S. Patent System faces some serious challenges during the second Trump Administration.   For the USPTO, retaining experienced personnel and reducing the unexamined patent application backlog will be very difficult.  On the legislative side, the PTAB and patentable subject matter reform (the PREVAIL and PERA bills) need to enacted by Congress, but whether there is sufficient support for either of these bills remains to be seen.  

Eric Kirsch designed electronics and wrote software at GE Space Division before attending law school at the University of Pittsburgh. Eric then became an Assistant District Attorney for the City of Philadelphia, and subsequently became a patent litigator for an IP boutique law firm in New York.  Eric was hired by Nikon as Chief IP Counsel in 2010 – a position he held for 10 years.  Recently, Eric joined Rimon as a partner in the firm’s Tokyo Office. 

Eric can be reached at eric.kirsch@rimonlaw.com.

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