The Trump administration recently issued an Executive Order excluding employees in the Patents business unit and the Office of the Chief Information Officer (OCIO) of the U.S. Patent and Trademark Office (USPTO) from joining certain labor unions, citing national security concerns. The order, titled “Further Exclusions from the Federal Labor-Management Relations Program,” bars these employees from representation by the Patent Office Professional Association (POPA), which includes patent examiners, and the National Treasury Employees Union Chapter 243 (NTEU 243), representing non-professional workers.
A Move Aimed at Secrecy and Efficiency
The order highlights the USPTO's role in reviewing inventions for potential national security implications under the Invention Secrecy Act. The agency assesses whether the release of certain patent applications could harm national interests, potentially issuing secrecy orders to protect sensitive technologies.
However, critics argue that the broad application of this designation overlooks the everyday nature of many patent exams. Acting Director Coke Stewart noted in a LinkedIn post that while new examiners must work onsite for a year, existing employees retain their current working conditions, raising questions about the extent of national security risks involved in typical patent reviews.
Union Response: POPA Vows to Continue Advocacy
POPA has responded by insisting it remains operational and is exploring alternative means of representation. In a statement, POPA President Patricia Duffy emphasized that the union is “still here” and intends to continue efforts to restore bargaining rights. The organization has filed a lawsuit alongside the National Weather Service Employees Organization, challenging the administration's rationale. The suit argues that the USPTO rarely issues secrecy orders and that national security functions are secondary to the primary role of patent examiners.
Reactions from Legal and IP Experts
Legal experts and industry figures have expressed doubts about the administration’s reasoning. Paul Fehlner, Chief Intellectual Property Counsel at Spyre, suggested it might be an attempt to undermine union representation rather than a genuine national security concern. Jeannie Z. Taylor echoed this sentiment in a LinkedIn comment, recalling a scenario where an examiner was handling a patent for a new lipstick formulation under the guise of national security.
Former USPTO Commissioner Bob Stoll questioned the rationale behind excluding all examiners from union membership, noting no such issues during his tenure and suspecting it as another effort to dismantle collective bargaining rights.
Implications for Trademark Law and Business
While the immediate focus is on labor relations, this decision has broader implications for intellectual property law. Businesses must consider how trademark confusability and monitoring will be affected by potential changes in the labor dynamics of the USPTO.
Efficient trademark monitoring remains crucial to prevent confusion with similar marks and protect brand integrity. As the legal landscape evolves, businesses should stay informed about developments that could impact their trademark strategies.