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: http://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.

9 thoughts on “USPTO gives free pass on filing deadlines until December 28

  1. 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.

    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 statute, has no such grant of authority.

    Maybe the PTO can “consider” papers that are actually filed late to be timely, but I don’t know where a court would find similar authority when an issued patent is tested — “You knew the statute. ‘Considered Schmiddered’ You knew you had a statutory duty, and the Post Office was open those days.”

    The PTO has the authority to waive regulations (and thus can allow extension fees to be tolled for two days), but if they don’t have the authority to define “holiday” for purposes of statute, they don’t identify it on the notice.

    This sure looks to me like the PTO taking a bad situation and making it worse — give a promise that they can’t deliver on, and invite detrimental reliance.

    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.

  2. Glad the PTO saw the light on this one. It’s a pity they waited until almost 6 pm, when most attorneys with deadlines had already filed by paper (and perhaps paid a penalty for a paper patent filing). I, too, wonder if something more substantial than a power failure happened–it was reported on the e-trademarks list that the fax machines went down too.

  3. Hey Carl,

    Thanks for confirming that PCT-National Stage entry is included in this list. It’s mind-boggling that the USPTO appears to have absolutely no redundancy in its major electronic systems. A failure to have such redundancy in the electronic systems of a major corporation would have serious repercussions.

  4. I’m somewhat obsessed about the USPTO itself declaring a Federal Holiday when only the President or Congress can declare a Federal Holiday and Office of Personnel Management (www.opm.gov) is the agency responsible for closing the Federal Government inside the beltway for, e.g., inclement weather.

    I 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, I 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. Seems 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.

    So, I wonder what effect if litigated, i.e., one asserts a patent is not valid as it was not timely filed as the USPTO did not have the authority to side-step the 1 year bar date (or 30 month national phase entry date) by declaring a Federal Holiday.

    It seems 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. …

    Still, this is CFR, aka regulations, not statute.

  5. Suzannah’s comment is spot on. 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.

    Yesterday’s notice is total baloney.

    If you have a statutory deadline, file in paper.

  6. “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” 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. ”

    “Thus, any patent- or trademark-related correspondence transmitted electronically to the USPTO on Tuesday, December 22, 2015, Wednesday, December 23, 2015, or Thursday, December 24, 2015, will be considered filed in the USPTO on the date the USPTO received the electronic transmission.”

    First, the Director does not have authority to declare Federal Holidays or to consider that particular days will be Federal Holidays; only Congress has this authority under 5 U.S.C. § 6103. Second, under 35 U.S.C 21, the Director can only consider the later filings as timely in “emergencies designated by the Directory” for “any paper or fee required to be filed in the Patent and Trademark Office will be considered filed in the Office on the date on which it was deposited with the United States Postal Service or would have been deposited with the United States Postal Service.” Thus, the “emergency” power is limited to acceptance of papers that were or *would have been filed* with the USPS except for the emergency. But filings by EFS by definition would not have been so filed with the USPS. Thus, this provision does not give the Director authority to accept EFS filings received on Monday as if there were filed earlier. That power is expressly limited to filings received via USPS. You have to file on time, by paper, just like in the old days, if you have bar date or statutory deadline.

  7. The true story has not come out. It would seem that every practitioner before the PTO should not only be calling their U.S. Representatives and Senators, but also the news outlets. This is at least a $20,000,000 mistake (given 20K personnel idled and repair costs) by an agency covering up its own problems by exerting power beyond its statutory limits (declaring a “federal holiday”) that put at risk any pending patents (allegedly the most important contribution of the US to the world these days).

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