Month: December 2015

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USPTO gives free pass on filing deadlines until December 28

As you may know (see my previous blog posts here and here) the USPTO somehow ended up on December 22 with all of its e-commerce systems broken.  The system failures are said to be due to a “power failure”.  Oddly, it is apparently not enough to restore the power, because supposedly this power failure “damaged equipment” at the USPTO.  USPTO has posted this notice:

In light of this emergency situation, the USPTO will consider each day from Tuesday, December 22, 2015, through Thursday, December 24, 2015, to be a “Federal holiday within the District of Columbia” in accordance with the description and regulations in this official notice posted here: https://www.uspto.gov/blog/ebiz/.

It had already been determined some years ago that Friday, December 25 would be a federal holiday.  And December 26 and 27 are weekend days.  In practical terms this means that any filing that might have been due in the USPTO on December 22, 23, 24, 25, 26 or 27 will be considered by the USPTO to be timely filed if it is filed by Monday, December 28.  This applies to the filing of new patent applications, entry into the US national phase from a PCT application, or response to an Office Action.

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USPTO unprepared for power outage

Every USPTO e-commerce system has been broken since about 5PM Eastern Time yesterday.   Many hours passed during which USPTO was silent about the cause of the outage, and it was left to customers to compare notes and to try to guess what was going on through discussions on the Trademark Practitioner’s Listserv and the Patent Practitioner’s Listserv.  (What?  You have not joined those listservs?  Click on the links to see how to join.)

About fifteen hours into the outage, USPTO finally revealed the cause of the outage — the electric power had gone out at the Madison Building in Alexandria.  USPTO does not, apparently, have backup generators to keep things going during such a power outage.  Nor does it have redundant electrical feeds from two different sources or feeds.

This power outage is like watching a bad movie again and again.  We all watched this bad movie on May 14, 2014 when all of the patent e-filing systems were broken for some eighteen hours.  The backup patent e-filing system was broken just like the main system.  The only way to file a patent application was to go to the Post Office or hand-carry it to the Patent Office.  Either of which would incur a $400 penalty for failing to e-file.

For some years now I have been urging USPTO (blog) to relocate its backup e-filing server to a geographically diverse location.  This has fallen on deaf ears at the USPTO.

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Still no geographically diverse USPTO backup server for e-filing!

Well today every USPTO e-commerce system has crashed.  Users are unable to reach EFS-Web (patent filing) or PAIR or patent assignments on the web.  EPAS is broken.  The system for paying maintenance fees is broken.

Oh and EFS-Web Contingency, the “backup” patent e-filing system that is “guaranteed” to be working even if the main EFS-Web system is broken, is broken.

On the trademark side, TEAS and TESS are both broken.  TSDR is down.  TTABVue is down.

Oddly the main USPTO web site is not broken.  But then the main USPTO web site does not actually do anything for USPTO customers.  To actually get anything done one must migrate away from the main USPTO web site to one of the other e-commerce sites.

It is clear that even now there is some Single Point of Failure that is able to knock out both the main EFS-Web server and the backup EFS-Web server.  An alert twelve-year old, hearing about such a problem, would have no trouble figuring out that the correct protective step would be to move one of the two servers to some geographically diverse location.  No single errant backhoe would rip up both fiber optical cable feeds at the two locations.  No power line downed because of ice would shut down both locations.

Which brings me to the Big Problem.  The Big Problem, as I have blogged about again and again, is that USPTO continues to fail to place its backup patent e-filing system in a geographically diverse location such as one of the other Patent Offices.

Oh and of course USPTO’s answer would be “you can always use 37 CFR 1.10” meaning “you can go to the Post Office”.  Except then you would get a slap in the face, as our firm did, with a notice of having to pay a $400 penalty for failing to e-file.

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Will the USPTO be closed this Thursday?

Every December there is a sort of game of chicken, with federal employees (and customers of the USPTO) wondering until the last minute whether the President will sign an executive order giving federal employees an extra day off from work around Christmas.  This affects customers of the USPTO because they need to know whether patent applications and responses can be postponed until the next working day.

Slightly over half of the time over the last twenty years or so, what has happened in December is that the President signs such an order.  There has never been more than two or three weeks’ advance notice, and sometimes the Presidential order has been signed just a few days before the would-be holiday.

In 2014 Christmas fell on a Thursday (and thus was a federal holiday), and on December 5 of that year the President signed an order giving everybody an extra day off on Friday the 26th.  This meant that any patent application or response that would normally be due on the 25th or 26th or 27th or 28th could be postponed until the 29th.

In 2013 Christmas fell on a Wednesday and the president did not give any extra time off.

So how will it be this Christmas season?  Will federal employees get the day off on Thursday the 24th?  Will customers of the USPTO be able to put off filings that would have been due on the 24th until Monday the 28th? Continue reading “Will the USPTO be closed this Thursday?”

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USPTO has broken the XML import feature of the ADS

(It took a couple of days, but USPTO did eventually acknowledge that it broke the XML import feature.  See a followup post here.)

By way of background, for many years, since the first days of EFS-Web, it has been possible using Acrobat to import bib data from an XML file on the user’s hard drive into the Application Data Sheet (PDF) file such as Form PTO/AIA/14.  The resulting PDF file could then be uploaded into EFS-Web.

Bruce Young, who is an alert member of the EFS-Web listserv, recently reported that when USPTO released version 2.1.12 of its Application Data Sheet PDF form, USPTO broke the XML import capability of the form.  As Bruce explains:

Older versions of the ADS form, up to and including 2.2.11 (number in lower left corner of the form) allowed an .xml file to be imported into the form to populate it.  … I use this feature because my docketing system (AppColl) can create a .xml file with all of the correct information that I have entered into that system, so I don’t have a possibility of typos once the information has been correctly entered into my docketing system.

But [the new version of the PDF form] for some reason does not allow the importation of a .xml file. The menu option for Import Data is greyed out for some reason.

The unhappy consequence of this action by USPTO, breaking the import feature, is that users are forced to hand-key bib data into the PDF form.  This increases the risk of a user completing the ADS form incorrectly.

USPTO should repair this form, re-enabling the XML import feature of the form.

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Office of Patent Petitions still lagging with PPH petitions

The Office of Pateopp-backlog2nt Petitions dashboard would have us believe that the present backlog for deciding PPH petitions is 136 days.  Given that the factual requirements for such a petition are nowadays self-certified by the filer, it seems unreasonable that the filer should have to wait 136 days for the petition to be decided.  Indeed it seems to me that USPTO should make this into an ePetition (the kind of petition that is automatically processed by EFS-Web and immediately granted, if all petition requirements are met).

Some weeks ago a high-up person in the Office of Patent Petitions told me that Something Was Going To Be Done.  Resources were going to be found, I was told, so that this backlog could be reduced.  But my post today notes that one of our PPH cases had its petition filed 144 days ago and the Office of Patent Petitions has not yet gotten to that petition.  Things seem to be getting worse, not better.

The policy goals of PPH (reducing examination backlog, improving patent quality, promoting science and the useful arts) are not well served when the USPTO falls so far behind (four, five, even six months of delay) in deciding PPH petitions.

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No need for Extension of Time Petitions

A question came up the other day in the listserv for patent practitioners (EFS-Web).  A list member asked how one should fill in the various fields in Form PTO/AIA/22 (Petition for Extension of Time).  One of the fields is “FOR” and the list member wondered whether the title should be pasted into that field.

One thing about this is that in my view (see blog), no field other than the application number actually matters or is required.  But more importantly, in my view Form PTO/AIA/22 (and its companion form PTO/SB/22) is completely unnecessary.  Here’s why.

Continue reading “No need for Extension of Time Petitions”