Month: August 2018

When the America Invents Act became law, it established a statutory penalty of $400 for the practitioner who failed to e-file a new patent application.  ($200 for small entities.)  This might best be understood as a Congressional mandate to the USPTO to do whatever was needed to ensure that a backup e-filing server would always be available even if the main e-filing server were to crash.

It will be recalled that there was a massive system outage at the USPTO starting on August 15, 2018.   Despite numerous reminders in 2014, 2015, and 2016 to the USPTO to take steps to move the backup server physically away from the main server, USPTO failed to do so, and as a consequence the system outage took down the backup server as well as the main server.  During the massive system outage, practitioners thus had no choice but to file their new patent applications on paper.  These applications were filed by Priority Mail Express (Rule 10) or were hand-carried to the USPTO.  Each such application thus incurred the $400 penalty.

Of course one wishes that USPTO would refund the penalty given that it was USPTO’s fault, not that of the practitioner, that the filer failed to e-file.  But during the previous outages, the USPTO had taken the position that because the $400 was statutory, not rule-based, then its hands were tied and it was impossible to refund the $400.  During the August 2018 outage, however, Director Iancu posted a message that the USPTO was working on a way to give back the $400.  I wondered (blog article) how the USPTO would finesse this.

Now USPTO has posted a Federal Register notice that establishes a policy for getting the $400 back.  This blog article discusses the notice and explains how to actually get the money back. Continue reading “How to get your $400 paper-filing penalty refunded”

On August 15, 2018 the EFS-Web server for filing US patent applications crashed.  Customers then turned to the Contingency EFS-Web server.  This is the server that is supposed to be available if the main EFS-Web server were to crash.

And, sadly and predictably, whatever it is that happened on August 15 to crash every patent-related server at the USPTO, it brought down the Contingency server along with the main server.

If this had been the first time such a thing happened, that would be one thing.  But such a thing happened in November of 2016.  And such a thing happened in December of 2015.  And it happened in May of 2014.  The contingency EFS-Web server, the one that is promised to be working whenever the main EFS-Web server crashes, also crashed.

As for the August 2018 massive crash that brought down both the main system and its backup, the USPTO has said the cause was a problem with a Palm database that was essential to both systems.

As for the December 2015 massive crash that brought down both the main system and its backup, the USPTO has said the cause was a problem with a UPS (uninterruptible power supply) that was powering both systems.

USPTO never came out and said what happened on May 14, 2014 to bring down the main system as well as its backup.

USPTO never came out and said what happened on November 7, 2016 to bring down the main system as well as its backup.

What’s consistent about all of this is USPTO’s failure to follow common sense in the way that it set up the backup system.  Common sense tells you that if you have a mission-critical backup system, it needs to not be in the same building as the main system.  If you have a mission-critical backup system, it needs to not be connected to the power grid in the same way as the main system.  If you have a mission-critical backup system, it needs to not be connected to the Internet in the same way as the main system.  And so on.  A responsible system designer will look to identify any single points of failure (SPFs) that might bring down both the main system and its backup.  And for each such SPF, figure out how to reduce it or maybe even eliminate it.

None of which USPTO seems to have done.

Members of the intellectual property community have told USPTO over and over again about these common-sense measures.  The backup Contingency EFS-Web server needs to be moved to a different geographic location, connected to the power grid in a different way, connected to the Internet in a different way.  I blogged about this on November 7, 2016 and on December 24, 2015 and  on May 14, 2014.  When USPTO actually moved the Contingency EFS-Web server to Denver on April 1, 2016 (as reported here) I figured this would mean we would no longer run into the problem of an SPF bringing down the main server and its backup … but I was mistaken.  (USPTO did not actually move the contingency server as reported on April 1, 2016.)

As may be seen from the photograph above, sometimes redundancy is important.  The e-filing of US patent applications is something for which redundancy is important.  USPTO was told in 2014 and 2015 and 2016 to move its contingency EFS-Web server to a different geographic location.  USPTO failed to do so.  Now, in 2018, USPTO needs to move its contingency EFS-Web server to a different geographic location.  USPTO needs to carry out this move in an open, candid way, explaining the various SPFs and what USPTO is doing to minimize those SPFs.

Share a thought or two with the USPTO.  Please post a comment below.

The massive system crash at the USPTO began about August 15, 2018 and things were sort of almost back to normal around August 21.  During the recovery efforts USPTO posted updates that indicated that USPTO was in the position of having to reconstruct the Palm database, apparently by cobbling together various incremental backups to arrive at a reconstruction of what the database might have been like on some particular date and then applying more recent changes, eventually working toward what the contents of the Palm database would have been in the absence of whatever bad thing happened on the 15th.

Not that USPTO ever quite came clean on what exactly the bad thing was that happened to the Palm database on the 15th.  Maybe there was a ghost in the machine?

But anyway there were odd things that USPTO did around August 21, 2018 that related to a particular date from about four years earlier — June 25, 2014.  Members of the PAIR listserv noticed odd things relating to OCNs (Outgoing Correspondence Notifications).

Continue reading “June 25, 2014 and the recent massive system crash at the USPTO”

From time to time in the EFS-Web listserv, list members have commented on the need for a registered practitioner to keep the Office of Enrollment and Discipline informed of the practitioners’s mailing address changes.  I now have first-hand knowledge of the enormous fraction of registered practitioners who do indeed fail to keep the OED up to date. Continue reading “Failing to tell the OED your new address”

September 1, 2018 is a big day.  It is the day that everything changes for US utility patent applicants who are claiming priority from Chinese priority applications. Continue reading “September 1 and US utility patent applications that claim priority from Chinese patent applications”