Major Power Outage Causes Shutdown of USPTO Online and IT Systems -- USPTO to Consider December 22-24 to be "Federal Holidays" -- UPDATED

By Donald Zuhn --

On Tuesday, December 22, a major power outage at the U.S. Patent and Trademark Office headquarters in Alexandria, VA significantly damaged the Office's electronic systems and required the shutdown of the Office's online and IT systems.  As a result, the Office's filing, searching, and payment systems, systems used by examiners across the country, and fax machines have been unavailable to applicants and practitioners since Tuesday evening.

In an update posted earlier today on the USPTO Systems Status and Availability webpage, the Office indicated that it was working diligently to assess the operational impact on its systems and to determine how soon they could be safely brought back into service in the coming days.  The Office noted that "teams will continue to work around the clock to restore [the Office's systems] as quickly as possible," but estimated that its systems would be impacted at least through the Christmas holiday on Friday.

Although the Office was advising stakeholders this morning to utilize regular and Express mail (requiring many applicants and practitioners to dust off procedures that had become far less common since the implementation of the Office's EFS-Web), the Office's most recent notice indicates that the shutdown constituted an emergency situation and that the Office would consider each day from Tuesday, December 22, 2015, through Thursday, December 24, 2015, to be a "Federal holiday within the District of Columbia" under 35 U.S.C. § 21 and 37 C.F.R. §§ 1.6, 1.7, 1.9, 2.2(d), 2.195, and 2.196.  As a result, the Office will consider any action or fee due between December 22 and December 24 as timely if the action is taken, or the fee is paid, on the next succeeding business day on which the USPTO is open (see 37 C.F.R. §§ 1.7(a) and 2.196).  According to the Office, actions that are taken or fees that are paid on the next succeeding business day on which the USPTO is open will be considered timely for the purposes of, for example, 15 U.S.C. §§ 1051(b), 1058, 1059, 1062(b), 1063, 1064, and 1126(d), or 35 U.S.C. §§ 119, 120, 133, and 151.  Because Friday, December 25 is a Federal holiday, the next succeeding business day would currently be Monday, December 28, 2015 (provided, of course, that the Office can restore its systems by that date).  The Office also noted that it would issue a subsequent notice as needed if its systems are not fully operational by Monday, December 28, 2015.

Updates regarding the status and availability of the Office's systems can be found here, as well as on the Office's Facebook and Twitter accounts.  In addition, Patent Docs will continue to monitor and report on the USPTO systems shutdown through the holiday weekend.

UPDATED:  Some commentators have questioned the Office's authority to consider December 22-24, 2015 to be Federal holidays (see, e.g., Comment 6 in response to Patently-O's coverage of the USPTO power outage and systems shutdown, as well as the comment here).

UPDATED:  The comment posted in response to Patently-O's coverage of the USPTO power outage and systems shutdown has now been posted here.

Comments

[Heebie-Jeebies]

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.

[Disbelievin' Doug]

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.

Wow.

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?

[Some Random Guy]

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

[EG]

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.

[A Rational Person]

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 . . . .

[A Rational Person]

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.

[skeptical]

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

[David Boundy]

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:

I.FILING OF PAPERS DURING UNSCHEDULED CLOSINGS OF THE U.S. PATENT AND TRADEMARK OFFICE
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.

[Lee]

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.