Trump Issues Order: USPTO Staff Prohibited from Participating in POPA, Yet Telework Unaffected as of Now
The National Treasury Employees Union Chapter 243 represents a diverse workforce of federal employees across 38 departments and agencies, including paralegals, IT specialists, IT project managers, customer service representatives, legal instrument examiners, budget analysts, and other support staff at the USPTO. However, a recent Executive Order has stirred up controversy, as it excludes employees in the patents unit and Office of the Chief Information Officer (OCIO) of the USPTO from joining the Patent Office Professional Association (POPA) or Chapter 243.
President Donald Trump issued the Executive Order, titled "Further Exclusions from the Federal Labor-Management Relations Program," which aims to enhance national security. The order was issued just before Labor Day weekend. The USPTO Acting Director Coke Stewart's memo states that neither the EO nor the EO issued on March 27, 2025, titled "Exclusions from Federal Labor-Management Relations Programs" will affect any employee's duty station, salary, health and retirement benefits, work hours, award programs, or the like.
The first new Collective Bargaining Agreement (CBA) for POPA in nearly 40 years was signed in December 2024, covering more than 9,600 patent-side employees. The new CBA had a five-year term. However, the order now prevents these employees from collectively bargaining with their union.
Chapter 71 of title 5 sets forth protections for federal employees with respect to the right to organize and bargain collectively via labor unions. However, it cannot be applied to the Patents business unit and the OCIO in a manner consistent with national security requirements and considerations. The name of the manager who carried out the separation of employees in the Patents and OCIO department of the USPTO from POPA and Chapter 243 is not publicly provided.
POPA has sued the administration, alleging that the Administration's actions are retaliatory due to their vocal opposition to its efforts to end telework and reduce staffing. Jeannie Z. Taylor of Learning Design Alchemy wrote that the national security rationale for the Executive Order seems unfounded, as she knows an examiner who was working on a patent for a new lipstick formulation at the time. Paul Fehlner, Chief Intellectual Property Counsel at Spyre, commented that the national security designation seems like a subterfuge to negate union representation.
Comments on LinkedIn and Reddit have questioned the premise that all patents have national security implications. At best, national security is an ancillary, rather than primary, function of "just 26 patent examiners of the nearly 9,000 examiners employed by the USPTO." The suit argues that the USPTO does not assess whether the release of patent applications could harm national security, and that only about 50 of the 600,000 patent applications received each year by the USPTO are ultimately subject to a secrecy order after being assessed by the defense agencies.
The Invention Secrecy Act tasks the Office of the Commissioner for Patents and subordinate units, Patent and Trademark Office, with reviewing inventions made in the United States, assessing whether their release could harm national security, and if so, issuing secrecy orders that prevent public disclosure. POPA updated its website with a press release indicating it is suing the administration shortly after initial publication of the article.
The Order does not affect trademark examiners at this time. The controversy continues to unfold, with many questioning the rationale behind the Executive Order and its potential impact on federal employees' rights to unionise.
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