March 11, 2025 | IAM | 2 minute read

Recent executive actions portend a reduction – potentially a significant reduction – in the number of administrative patent judges at the Patent Trial and Appeal Board.

We predict the likely consequence of significant headcount reductions at the PTAB is a substantial increase in district court patent litigation. Non-practicing entities (NPEs) will soon recognize the diminishing effectiveness of a key impediment to maintaining a district court action.

In 2012, Congress enacted the America Invents Act to strengthen the US patent system. As part of the AIA, Congress created the PTAB within the US Patent and Trademark Office to hear post-grant challenges to issued patents. Bill co-author Senator Patrick Leahy said at the time the goal in part was addressing a perceived problem of “patent trolls” using patents of “low quality” to “extort unreasonable licensing fees” and thus act as a drag on innovation, according to the Congressional Record.

The PTAB’s post-grant proceedings quickly became a popular way for patent litigation defendants to challenge the validity of asserted patents, so much so that the USPTO quickly expanded the ranks of administrative patent judges (APJs) to handle the increased workload.

Before President Donald Trump came into office, USPTO records showed 226 APJs worked at the PTAB.

Potential Judge Attrition

The White House issued its return-to-office mandate, applicable to executive branch employees, on January 20, 2025. Although this directive has not yet been applied to patent examiners who have a collective bargaining agreement protecting remote work, that agreement does not cover APJs. The USPTO ordered all judges who live within 50 miles of an office to return to in-person work starting on February 10, and remote employees outside 50 miles to return later.

Telework has long been a prominent feature of PTAB employment, and central to the board’s ability to recruit and retain highly skilled APJs. For example, the “Telework Annual Report, 2022,” study by the USPTO found that over 250 employees in the PTAB business unit took advantage of telework options. Thus, the return-to-office directive itself could lead to significant attrition at the PTAB, including of APJs.

Beyond the return-to-office mandate, other workforce initiatives announced by the administration will likely compound the attrition of APJs. A significant number of judges are retirement-eligible and likely opted into the “fork-in-the-road” deferred resignation program that incentivized early retirement. The White House has also implemented a government-wide hiring freeze, and directed that once the freeze is lifted, agencies may only hire one new employee for every four departing ones. The cumulative effect of these policies is likely to create a perfect storm for PTAB staffing: increasing attrition of APJs while severely restricting replacements, leading to a substantially reduced headcount.

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