In a recent blog, we wrote about concerns that the Department of Government Efficiency (DOGE), President Trump’s advisory board headed (unofficially) by Elon Musk, has “taken control of top federal departments and datasets” and has access to “sensitive data of millions of Americans” – potentially including valuable unpublished patent applications.
We also noted that Commissioner for Patents Vaishali Udupa has resigned in order to take advantage of the deferred resignation program with eight months of severance — known as Fork in the Road— offered by President Trump to federal workers in an email on January 28, 2025.
As we said then, a significant reduction in the number of US Patent and Trademark Office (USPTO) employees, either via resignations or firing, could make the current backlog of patent application reviews even worse.
In 2024, there were more than 700,000 new patent applications filed, and more than 450,000 new trademark applications filed.
The current backlog is at least 826,736 unexamined applications with 26.1 months total pendency for patents. Other sources put the number of unexamined applications at 1.2 million.
Now it appears that what we feared may be coming to pass.
DOGE-related developments affecting the USPTO include:
Job offers to 600 patent examiners have been withdrawn.
- About 600 probationary patent examiners may be terminated.
It’s important to note that, unlike most other government entities, the USPTO is supported by user fees, rather than taxes appropriated by Congress. Thus, cutting the USPTO’s budget doesn’t reduce the federal deficit.
A memo dated February 26 from the US Office of Management Budget and the US Office of Personnel Management directed that by March 13 the USPTO (along with all other government agencies) must develop an Agency Reorganization Plan.
This plan must include:
- A significant reduction in the number of full-time equivalent (FTE) positions by eliminating positions that are not required;
- A reduced real property footprint; and
- Reduced budget topline.
As the AP reported, the Trump administration recently
published a list of more than 440 federal properties it had identified to potentially offload, including the FBI headquarters and the main Department of Justice building, after deeming them “not core to government operations.”
The next day, however, the list was removed from the government website.
As Wired reported, the list included
most of a sprawling, highly sensitive federal complex in Springfield, Virginia, that also houses a secretive Central Intelligence Agency (CIA) facility.
The USPTO already has a relatively small real property footprint. Some USPTO employees have been working remotely for 30 years, and about 95% do so at present.
But at the same time that agencies are told to reduce their real property footprint, some employees who work remotely are being told by DOGE to return to the office.
According to CNN,
Elon Musk and Vivek Ramaswamy are determined to force federal employees to return to the office in hopes that some will opt to quit instead….
“Requiring federal employees to come to the office five days a week would result in a wave of voluntary terminations that we welcome: If federal employees don’t want to show up, American taxpayers shouldn’t pay them for the Covid-era privilege of staying home,” they wrote.
Many federal employees are suffering job whiplash, as they’re fired and then invited back to work days later.
Any further delay in processing patent applications is even more problematic in light of the Federal Circuit’s 2021 decision in Hyatt v. Hirshfeld. The court held that prosecution laches is presumed if it takes more than six years to obtain a patent.
Under the doctrine of prosecution laches, a patent applicant can forfeit the right to a patent based on “an egregious misuse of the statutory patent system.” As set forth in Hyatt, the defense of prosecution laches requires proving two elements:
- The patentee’s delay in prosecution must be unreasonable and inexcusable under the totality of circumstances, and
- The accused infringer must have suffered prejudice attributable to the delay.
The second prong can be met if an accused infringer “invested in, worked on, or used the claimed technology during the period of delay.”
The Federal Circuit held that the burden is on the patent holder to show that the delay was reasonable or excusable or that the defendant didn’t suffer any prejudice as a result of the delay.
Thus, if you’re considering applying for a patent, it may be smart to do that sooner rather than later. If the line gets even longer, at least you’ll be closer to the front.
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