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« Guest Post: The Ghost of Christmas Patents | Main | USPTO Restores Fax Line -- UPDATED »

December 23, 2015


At least you guys noticed. The absence of this story from PatentlyO (at least as of the time of this writing) confirms that author's total lack of involvement with actual patent prosecution. I think academia is like the Dark Side.

Don't know how to explain IPWatchdog's silence.

Wow. This Googler-led patent office doesn't understand the concept of redundancy and separating your systems - even the "EFS-Web contingency" system is down, which means it was housed at the same location and running on the same power source as EFS, PAIR, etc.


I hope the woman from Google knows about the concept of back-ups. I'd hate to find, come Monday morning, that various file histories that were kept only in electronic format have disappeared. The PTO couldn't be *that* bad, right? Or could it?

What an absolute shit show. The Patent Office ultimately did the right thing, but they should have done it sooner.

Completely agree with the comment about the USPTO's apparent failure to provide any sort of "emergency" redundancy. It’s startling that the USPTO apparently had no real “backup system” to handle such an emergency for electronic systems that are so vital to their operations, as well as those customers who use it. I can’t imagine any major corporation ever leaving such important electronic systems so vulnerable to such a “meltdown,” knowing full well the serious consequences of doing so.

Such a "meltdown" also couldn't have happened at a worse time of year. There are many, many corporations that will be asking their patent attorneys to file many, many new applications between now and the end of the year. In addition, the USPTO, if it has the authority, would be wise to announce that they're waiving the fee normally charged for non-electronic filing of new applications-the failure to file electronically is almost certainly not the fault of the applicants. If the USPTO can't get their electronic systems up and running by Monday (December), I can just hear the “firestorm” building as all those folks trying to make last minute (and many) filings are told they have to use the old Express Mail procedure as the only Plan B.

Sure would be a "shame" if some of those USPTO executives who have been trying to destroy the US patent system were fired over this. As they say, you never want to let a crisis go to waste . . . .

Sorry, couldn't resist . . . .

Anyone heard how the USPTO plans to fix the ecommerce system problems?

I understand from Justice Kennedy that it should only take a weekend for a 2nd-year college student whose taken at a class in engineering to fix a typical problem with an ecommerce system.

All I know is that there better be pizza involved...

This combines my remarks and “Suzannah” from the Oppedahl blog.

Chapter 1—December 2015

Does the statute give the PTO authority to “consider” a day to be a holiday? No. That declaration has to come from either the President or Congress. The Office of Personnel Management (www.opm.gov) has authority to close the Federal Government inside the beltway for, e.g., inclement weather.

The PTO has the authority to waive regulations (and thus can allow extension fees to be tolled for two days), but if there is any valid source of authority to define “holiday” for purposes of statute, it isn’t identified in the notice.

35 U.S.C. § 21(a), the Certificate of Mailing statute, gives the Director the authority to “consider” a paper to be timely filed if it is timely mailed, but § 21(b), the holidays and government closure statute, has no such grant of authority.

The PTO’s precedent is inconsistent with today’s notice. Suzannah checked what the USPTO did for the JP tsunami. The USPTO said it cannot grant waivers or extension of dates or requirements set by statute, e.g., 1 year bar dates and national phase entries. See last paragraph of http://www.uspto.gov/patents/announce/japan_relief_2011mar17.pdf

The President hasn’t declared December 22-24th a Federal Holiday based on https://www.whitehouse.gov/briefing-room/presidential-actions . OPM hasn’t closed the USPTO. In fact, Suzannah called the USPTO today to see if they are open, and they are (but will close early per Obama’s executive action).

USPTO has general powers provided by Section 2, but it clearly states that the USPTO “(2) may establish regulations, not inconsistent with law, which—“. Note “regulations” AND “not inconsistent with law”. Bar dates are statutory law. The USPTO can’t validly declare a Federal Holiday when it is inconsistent with laws, aka bar dates set by statute and laws granting such powers to declare Federal Holidays to Congress and the President (by executive action) and whatever laws give OPM the power to close the Federal Government.

Chapter 2—when it comes time to get any value out of the patent

Maybe the PTO can “consider” papers that are actually filed late to be timely, and that'll be good enough until the day the patent issues. But I don’t know where a court would find similar authority when an issued patent is tested — the decision will likely read “You knew the statute. ‘Considered Schmiddered’ The PTO is not permitted to act as an expounder of law. You knew you had a statutory duty, and the Post Office was open those days.” Very much like The Medicines Company case a couple years ago—lawyers are responsible for knowing the statute, and face malpractice verdicts in the tens of millions when they rely on silly, unfounded effluent put out by agencies with ill-informed lawyers.

Suzannah suggests that the USPTO might have done better by saying it is officially closed December 22-24th. See MPEP 510:

37 CFR 1.9(h) provides that the definition of “Federal holiday within the District of Columbia” includes an official closing of the Office. When the entire USPTO is officially closed for business for an entire day, for reasons due to adverse weather or other causes, the Office will consider each such day a “Federal holiday within the District of Columbia” under 35 U.S.C. 21. …

This is a CFR regulation, not statute. It’s not clear that Rule 1.9(h) is issued within statutory authority, but because it’s a formal regulation, it’s at least got a prayer of being recognized as a valid interpretation of statute.

Chapter 3—Recommendation.

This sure looks to me like the PTO taking a bad situation and making it worse — as they do so often, they make a promise that they can’t deliver on, and invite detrimental reliance, and then welch on the promise when the applicant seeks to rely on it. (If you've ever petitioned any issue of any importance based on a promise in the MPEP, you know what I mean.)

If you have a statutory deadline, you must file on the mandated day. Use Express Mail or First Class as appropriate. The Post Office isn't closed, and you will likely be held to that.

If you take advantage of this for a statutory deadline item, include a copy of the notice in the submission. It’s going to be litigated.

I thought that the Patent/Trademark Office was going to have another location in Silicon Valley? At least in SV, there are loads of qualified engineers and computer people to help get things back up online quickly.

It seems strange that the entire system is blown. Conspiracy theories aside, doesn't this seem odd -- a major government office that is critical to the global economy going down in (almost) flames? Might it be something other than we are being told?

Just curious.

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