Proposed OPM Reduction-In-Force Rules Intersect with USPTO Operations
OH NO! WRONG RIF!
The Office of Personnel Management (OPM) published a proposed rule, dated March 5th, to revise reduction-in-force (RIF) regulations for federal executive agencies. The stated goal involves making the regulations “more streamlined, efficient, and merit-based by prioritizing performance over tenure and length of service when determining which employees will be retained in a RIF” (RIF Rule, p. 1).
The 102-page published paper makes it clear that the current framework prioritizes tenure. The agency notes that historical rules “calcified to the extent that they impede timely, if not effective, agency restructuring efforts” (p. 9).
According to the publication, the present structure forces organizations to operate under difficult protocols—one quoted source described the existing regulations as “the ultimate bureaucratic poison pill” (p. 9).
While the USPTO maintains an independently allocated budget and (formerly) operates under a strong, union-driven collective bargaining agreement, the agency, along with patent applicants and counsel, must now carefully evaluate these RIF rules and potential effects.
A transition from a seniority-based system to a proposed metric-driven meritocracy could improve patent quality and efficiency—but it could also lead to a smaller work force, deterring of new applicants, and a drop-off in USPTO institutional knowledge.
The USPTO and ‘Metric-Driven’ Performance
The United States Patent and Trademark Office operates as an executive agency subject to OPM personnel guidelines. A shift to performance-based retention holds specific weight within the patent system.
Patent examiner evaluation relies on highly quantitative Performance Appraisal Plans. Examiners receive precise ratings based on production, routing, and quality metrics.
The OPM proposal intends to “make the RIF process more clearly focused on merit by giving performance ratings a much more central role in determining retention in a RIF” (RIF Rule, p. 10).
Within a metric-driven environment like the examining corps, such a regulatory shift will likely directly link an examiner’s quantitative output and quality scores directly to their job security during a restructuring event.
The USPTO collects extensive data on examiner performance. This data would likely form the foundation of any RIF retention register under the proposed rules.
Changes to Job Security
Patent examiners face a changed retention hierarchy under the proposed rules. Junior examiners currently serving their probationary periods sit in a distinct category. The proposed text specifies that “employees serving an initial probationary period would be excluded from RIF procedures” (p. 15).
This exclusion provides the agency with “great flexibility regarding the employment of these employees” (p. 16). Agencies can separate probationary employees independent of the formal RIF competition.
Tenured examiners face a new reality where seniority offers less protection. The OPM stated that historical rules “prioritize tenure and length of service over performance ratings, meaning that high-performing employees may be separated” (p. 9).
The proposed rule reorders retention standing. The new hierarchy ranks employees by tenure group, then by “performance credit in descending order... as augmented by veterans’ preference” (p. 78).
Length of service serves merely as a tiebreaker for employees with identical performance credits (p. 28).
An agency calculates a value to represent an examiner’s performance credit using the three most recent ratings of record. A Level 5 summary rating yields 7 points, a Level 4 yields 5 points, and a Level 3 yields 3 points (p. 30). A Level 2 or Level 1 rating receives 0 points. Under the proposed rules, the agency sums these values to establish the retention score.
Examiners with long tenures but lower performance ratings face higher exposure to separation than newer examiners with top performance ratings.
Impact on Patent Applicants and Practitioners
Intellectual property professionals, patent applicants, and corporate counsel often track USPTO staffing levels closely. A reduction in the examining corps naturally limits the agency’s capacity to process applications.
Delays in prosecution timelines remain a central concern for patent strategy. A reduction in force in the executive branch occurs for specific reasons, including “lack of work, shortage of funds, insufficient personnel ceiling, reorganization” (p. 5).
The USPTO has been largely immune as the agency funds its operations entirely through user fees. A future shortage of funds appears less probable than at appropriated agencies; however, the USPTO’s fee-setting authority under the America Invents Act (2011) is apparently set to expire in September 2026. Executive branch mandates targeting organizational restructuring remain a possibility.
The proposed RIF rule explicitly references the Department of Government Efficiency (DOGE) Workforce Optimization Initiative and notes that the administration oversaw the reduction of some 317,000 federal employees in 2025 (pp. 7-8). While the majority of those 2025 departures were voluntary, the proposed rules lower the administrative barriers for future involuntary separations (p. 8).
A reduction in the examining corps inherently extends pendency. Fewer examiners means fewer office actions and allowances per fiscal quarter. The OPM designed the rule to assist agencies “in retaining their top performers, which will leave agencies better positioned to carry out their missions after a RIF occurs” (p. 10).
Retaining the most efficient and accurate examiners might mitigate the severity of increased backlogs. AI could help, one day.
The publication states, “The cumbersome and intricate rules make RIFs more time-consuming and resource intensive than necessary” (p. 9). By removing these hurdles, a restructuring event could happen rapidly. Stakeholders would have to have faith that the restructuring would be for the better.
The Ninth Circuit Ruling and Union Representation
These proposed OPM rules arrive on the heels of the United States Court of Appeals for the Ninth Circuit vacating a preliminary injunction that temporarily blocked federal union exclusions. The appellate ruling permits the administration’s decertification of the Patent Office Professional Association (POPA) to take effect under national security mandates.
POPA continues to fight the executive orders and prepare for a full trial on the merits; however, the examining corps currently operates without official union representation.
For the USPTO, implementing a major shift toward performance-based reduction-in-force protocols would historically involve significant union negotiation. The current lack of recognized collective bargaining alters that operational baseline, potentially allowing the agency to adopt the OPM’s performance-centric retention framework with fewer administrative hurdles or delays.
Thoughts & Considerations
The conceivable benefit centers on operational efficiency. The proposed rules support “mission readiness and a high-performing workforce” (p. 27). For the patent system, retaining examiners who consistently meet production and quality standards benefits the overall examination process. High-performing examiners process applications accurately and predictably.
Implementing these rules within the USPTO, however, requires precise and equitable performance appraisals. Examiners work across divergent technology centers. Grading art units with highly complex technologies against art units with straightforward applications presents an ongoing measurement challenge.
An examiner with a fully successful rating in a difficult art unit might hold less retention standing than an examiner with an outstanding rating in a less demanding art unit. Management will likely need to establish any new performance metrics without an established negotiation mechanism.
The patent system faces specific risks under the proposed regulatory framework. Prioritizing performance over seniority introduces the risk of losing profound institutional knowledge.
Senior primary examiners possess decades of experience with specific prior art and internal classification systems. Continuation applications may claim priority to applications from 19+ years earlier, which might require analysis of prior art references from a time before some junior examiners were born (also known as the late 1900s).
A highly experienced examiner might maintain a “Fully Successful” rating rather than an “Outstanding” rating, but yet bring those decades of art knowledge to the job every single day. Under the new rules, the agency might separate that senior examiner before a less experienced examiner with a higher rating.
Additionally, some observers might express concern that the new framework could permit politically motivated layoffs. Replacing the objective measure of seniority with performance ratings introduces potential vulnerabilities if scoring systems are subject to administrative influence or altered without union oversight.
Removing union representation may negatively impact the morale of highly specialized personnel. Reduced morale combined with an altered retention hierarchy and fears of targeted reductions could prompt experienced examiners to leave the agency for the private sector.
The loss of institutional knowledge presents a clear risk to patent quality, and increased turnover could exacerbate the existing patent application backlog. Training the examining corps—or the lack of budgeted training hours to effectively teach new policies and new hires—could grind the agency to a crawl.
Future Outlook
The OPM’s proposed reduction-in-force regulations signal a definitive shift in federal workforce management, establishing a framework broadly perceived to make it easier to streamline layoffs across agencies. However, this proposal will not take effect immediately.
The OPM has opened a 60-day public comment period following its March 5, 2026 publication in the Federal Register (p. 1). After this period, the agency must fulfill administrative procedures by reviewing submitted comments and publishing a final rule, establishing procedural hurdles that will likely push implementation into late 2026 or early 2027.
Legal and legislative challenges appear highly probable. Opponents, including federal employee unions, could challenge a finalized rule in federal court under the Administrative Procedure Act, arguing that the changes are arbitrary and capricious or exceed the OPM’s statutory authority.
Additionally, Congress possesses the authority to intervene by passing targeted legislation to block implementation or by utilizing the Congressional Review Act to overturn the final rule outright.
The transition from a seniority-based retention system to a performance-based system aligns with metric-driven environments but introduces distinct variables regarding examiner experience, the potential for politicized reductions, and overall application pendency.
IP professionals and patent applicants stand to experience the downstream effects of these policies if the USPTO initiates workforce restructuring.
Disclaimer: This is provided for informational purposes only and does not constitute legal or financial advice. To the extent there are any opinions in this article, they are the author’s alone and do not represent the beliefs of his firm or clients. The strategies expressed are purely speculation based on publicly available information. The information expressed is subject to change at any time and should be checked for completeness, accuracy and current applicability. For advice, consult a suitably licensed attorney and/or patent professional.