Every external-facing system at the USPTO crashed two days ago on December 22, 2015. As of today, December 24, most of the systems are still broken. (In another blog post I review the status of the various systems up to the present time. I also describe the administrative steps the USPTO still needs to do to remediate the crash. I also discuss the redundancy measures that USPTO should have taken years ago but did not do, and now needs urgently to do.)
In the past, when a USPTO e-filing system failed, the rather brusque advice to the would-be filer of a patent application was that the customer could go to the post office instead of e-filing. The customer was further told that the $400 penalty for failing to e-file would not be waived. Translated into plain language, the would-be filer of a patent application was being told to pound sand.
In the aftermath of the May 14, 2014 massive crash, in which both EFS-Web servers crashed for some eighteen hours, thousands of customers who went to the post office were dinged with the $400 penalty. We at Oppedahl Patent Law Firm LLC were dinged for that penalty for the one urgent patent application that we filed at the post office on the evening of May 14. Pound sand indeed.
The most recent system crash that knocked out both of the EFS-Web servers (the main one and the “contingency” server that USPTO promises will always be working even if the main one crashes) happened on the afternoon of Tuesday, December 22, 2015. Just over twenty-four hours later, after the close of business on Wednesday, December 23, 2015, the USPTO made an announcement that was (I expect) intended to be much more customer-friendly than the previous “pound sand” policy. Here is what the USPTO announced yesterday evening:
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/.
At first blush, this looks like a really smart and customer-friendly way to address the massive server crash. The practical consequence, as I blogged yesterday, was that filers would get a free pass on anything that needed to be filed on the 22nd or 23rd or 24th, and anything that was due to be filed that day (or on the 25th or 26th or 27th) could be postponed until the 28th. Nobody would have to scramble around trying to find a post office that was open late. Nobody would have to pay the $400 penalty for failing to e-file. The problem had been remediated.
But several alert members of the patent practitioner listserv clued me in that I was wrong to think that this action by the USPTO would remediate the problem. Mere minutes after USPTO’s announcement that it would “deem” these three days to be federal holidays in the District of Columbia, alert list member David Boundy wrote:
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) gives the Director the authority to “consider” a paper to be timely filed if it is timely mailed, but § 21(b) on holidays 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. The PTO has the authority to waive regulations (and thus can allow extension fees to be tolled for two days), but they don’t have the authority to define “holiday” for purposes of statute.
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.
(What? You don’t belong to the the patent practitioner listserv? Time to join!)
USPTO is going to have to go to the Hill to get a special bill passed, deeming December 22-24 to have been a federal holiday in the District of Columbia at least for the purposes of the USPTO. If USPTO fails to do this, there will be later litigations in which infringers argue (and might well successfully argue) that the USPTO only had the power to waive rules, and did not have the power to waive the statute.
While the USPTO is visiting at the Hill asking for a special bill to fix this December 22-24 problem retroactively, USPTO might as well ask that Congress undo the $400 penalty for failing to e-file that came into effect with the America Invents Act. Or at least ask that Congress give the USPTO the power to waive that penalty when needed.