Despite having been told many times to take corrective measures, USPTO has even now not moved its backup e-filing server to a redundant location. This causes great harm to customers of the USPTO. See, quoted above, the notice appearing today on USPTO’s web site.
There are about four ways to file a US patent application. The usual way is to e-file it in USPTO’s EFS-Web system. When that system is broken, a customer is supposed to be able to e-file it in the EFS-Web Contingency system. EFS-Web Contingency is supposed to be available even when the regular EFS-Web system is not.
Right now, both EFS-Web and EFS-Web Contingency are broken. (I first learned of this failure at 7:43 AM Mountain Time today from a posting on the EFS-Web listserv, which of course you should join if you have not done so already.) This forces a customer to fall back on either of two paper filing methods — hand-carrying the application to the USPTO, or mailing the application at the Post Office using “priority mail express” tracking. The customer who uses either of these filing mechanisms will, however, get a slap in the face later — a bill for $400 which is a penalty imposed by the USPTO for failing to e-file the application.
Today’s system crashes at the USPTO are not the first. On May 14, 2014, both EFS-Web and EFS-Web Contingency were broken, just like today. They were broken for some eighteen hours, extending until well past midnight on that day. I am sure that many customers lost substantive rights that day because of this. In our office on May 14, 2014, we fax-filed as many documents as the rules permitted (the number is +1 571-273-8300) but there are some filings which, according to USPTO rules, cannot be fax-filed, for example the filing of a new US patent application. So on that day we were forced to go in person to a post office to mail the patent application to the USPTO. And we were slapped with the $400 penalty for having failed to e-file the application. I blogged about this.
USPTO’s actions (or, rather, inactions) about this are unacceptable. Two years ago I wrote to the USPTO to say that the EFS-Web Contingency server needed to be moved to one of the other patent offices (at that time, Detroit was a candidate). The idea is that USPTO needs to eliminate common points of failure between the EFS-Web and EFS-Web Contingency servers. If the two servers are connected to different electrical power grids, and are connected to the Internet in different ways, and are under two different roofs, this reduces the risk of simultaneous failures.
Shortly after the May 14, 2014 failure that lasted 18 hours happened, I personally spoke with (then-Acting) USPTO Director Lee to suggest that the EFS-Web Contingency server be moved to one of the other patent offices, to reduce the risk of simultaneous crashes of the two e-filing servers. Since then I personally spoke with Russ Slifer, then director of the Denver patent office, to suggest that the EFS-Web Contingency server be moved to the Denver patent office.
But even now, both servers are in the same place, hooked up to the same electric power, hooked up to the same internet connection, under the same roof.
The customers who today find that they must go to the post office to file their patent applications will get slapped with the same $400 penalty that we got slapped with on our May 14, 2014 filing.
The customers who today find that they must hand-carry their patent applications to the USPTO will get slapped with that same $400 penalty.
The asymmetry in USPTO’s handling of failures that get in the way of filing patent applications is glaring. When Hurricane Katrina made it hard to get to a post office, the USPTO issued an order permitting would-be applicants to go to the post office days or even weeks later without losing their intended filing date. But when USPTO permits both of its e-filing servers to crash, USPTO does not issue any order giving any relief to would-be applicants to permit e-filing on a later date. Instead USPTO tells them to go to the post office to file the patent applications, and later slaps them with $400 penalties.
Shortly after May 14, 2014, I filed a FOIA request with the USPTO seeking to find out how many $400 penalties USPTO imposed upon filers who hand-filed or post-office-filed their patent applications on that day. In a series of responses, not one of which was credible, USPTO’s ever-shifting position was that the answer was “none” (which I knew to be false because we ourselves had been charged the $400 fee) or “it is impossible to figure it out” (because supposedly USPTO could only figure out who had actually paid the $400 fee, and not who had been told they would have to pay it).
Today’s simultaneous failure of the two systems began about 2½ hours ago, and is ongoing. My previous personal entreaties to Director Lee and Deputy Director Slifer did not bring about any change. Maybe today’s failure at the USPTO will prompt the USPTO to move the EFS-Web Contingency server to one of the other patent offices. Failing that, maybe today’s failure at the USPTO will prompt the USPTO to adopt a Katrina-like rule that permits a would-be applicant who cannot e-file to do it a day or two later without losing the filing date. Failing that, maybe USPTO will figure out some way to waive the $400 penalty for non-e-filed filings on days when USPTO’s e-filing systems are broken.
I personally would settle for being able to hand carry applications to the Denver patent office. Not a solution for people who aren’t near a patent office, of course. And the $400 fee should definitely be waived.
And, of course, this is further complicated by the fact that late-night post offices are becoming vanishingly rare, for those unlucky people whose application filings get down to the wire during an EFS outage. According to the USPS location-finder, there are, for example, no locations in the greater LA area open until 9PM/midnight Eastern time. Ideally, of course, you’ll never run that late, but…