On the same day Donald Trump was sworn in as President, Coke Morgan Stewart was sworn in as the Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO). The Administration can appoint a Deputy Director without U.S. Senate confirmation. She has also been named Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the United States Patent and Trademark Office. She will likely lead the USPTO until a nominee for Director of the USPTO is confirmed by the U.S. Senate.
As Acting Director of the USPTO, Ms. Stewart has full authority to implement the Administration’s directives at the USPTO. Ms. Stewart can remain as Acting Director for 300 days (5 U.S.C. Sec. 3349a), so it is likely that the Administration will nominate a Director of the USPTO at a later date. Under the Federal Vacancies Reform Act of 1998, there is a general prohibition against an Acting Director concurrently being a nominee for Director.
Installing Acting Director at USPTO
The Administration’s process of installing a Deputy Director at the USPTO prior to the confirmation of a new Director is a departure from a more typical process followed by the first Trump Administration and others where the Director is nominated and confirmed before the Deputy Director is named. This may be a signal that the Administration plans to directly affect IP policy with more immediacy, for example, by implementing Executive Orders, Presidential Memoranda and Administration policies.
Return to In-Person Work
One immediate issue is implementation of the Presidential Memorandum (PM) Return to In-Person Work issued January 20, 2025 and the related Office of Personnel Management (OPM) Memorandum requiring that by Friday January 24, 2025, agency heads must (a) revise their agency’s telework policy to state that employees must work full time at their respective duty stations, (b) email employees of the agency informing them of the PM and the agency’s intention to comply with the PM, and (c) notify the OPM of the agency’s telework Managing Officer who will be assigned responsibility for compliance with OPM guidelines. The Department of Commerce issued a Dept. of Commerce Memorandum dated January 24, 2025 rescinding the 2021 U.S. Department of Commerce Telework and Remote Work Plan, and provided certain exceptions, including Bargaining Unit Exemptions, which explains that the Return to In-Person Work policy does not supersede collective bargaining agreements, and Organizational Exemptions, which expressly exempts the Patent and Trademark Office, which has been operating under their own telework plan. On January 27, 2025, the OPM published a second OPM Memorandum, which added the requirement that agencies develop an implementation plan for the return to full-time in-person work for all employees by February 7, 2025.
As of January 29, 2025, the USPTO has not yet issued a press release about the Return to In-Person Work directive or whether examiners are exempt because of the Organizational Exemption or because of a Bargaining Unit Exemption.
USPTO Telework
The USPTO has a longstanding policy of telework since 2011 when it implemented the Telework Enhancement Act, and a change to a return-to-office environment would be unfamiliar to all but the longest-employed USPTO employees. As reported in the Telework Annual Report 2023, USPTO reports that about 85 percent of the Office’s employees work remotely. Because of the longstanding telework program, it is not clear how many USPTO employees work close to the existing USPTO offices, or how they could be accommodated in the existing spaces. Additionally, the new Administration instituted a hiring freeze for agencies. In the current fiscal year 2025, as reported in the Patent Public Advisory Committee Meeting Minutes November 21, 2024, the USPTO planned to hire 1600 new examiners. Furthermore, the current Deferred Resignation Email to Federal Employees, ““Fork in the Road”,” dated January 28, 2025, may complicate staffing for the USPTO. While the Deferred Resignation Email is not limited by years of service, currently the average tenure for examiners is about 13 years, which suggests that there may be a group of long-standing experienced examiners who could consider taking the deferred resignation offer.
The impact of these policies on retaining and hiring talent and preserving the USPTO’s operation remains to be seen. Over the coming days and weeks we will see how the USPTO responds and whether there is an impact on the important functions of the USPTO.
