(I am delighted to observe (see blog) that USPTO has addressed the TEAS RF and TEAS Plus problem mentioned below.)
Today I review several aspects of USPTO’s massive system crash that began two days ago on December 22, 2015. In other blog articles I discuss the status of various systems and the “deeming” remedy that USPTO has proposed and redundancy measures that USPTO needs to bring about urgently. In this blog article I will talk about the administrative steps the USPTO needs to do (and has not yet done) to remediate the massive system crash.
When the USPTO’s patent e-filing servers (including the supposedly redundant server) crashed for some eighteen hours on May 14, 2014 (a crash that carried over to May 15), applicants were forced to file on paper. Some hand-carried their patent applications to the USPTO. Others (our firm included) used Priority Mail Express (née “Express Mail) at the post office to get a same-day filing date at the USPTO.
USPTO then slapped everyone who made use of either of these options with a penalty of $400 for failing to e-file.
Fairness would have suggested that USPTO should have waived the $400 penalty for failing to e-file, given that during the relevant time period USPTO’s e-filing systems (including the supposedly redundant system) were broken and it was impossible to e-file.
But fairness was not in the cards. I personally asked a very high-up person at the USPTO to waive this fee. USPTO’s official position in response was that the $400 penalty is statutory, not rule-based, and so it was not within the power of the Director to waive that penalty.
When I was first in practice as a patent attorney, nearly every big city had a 24-hour post office where you could go to send an Express Mail package to the USPTO at 11:59 PM and still obtain a same-day filing date. (Many big cities, including my home towns of New York and Denver, had two 24-hour post offices, one downtown and another near the airport.) But that was years ago, and nowadays the post office closes long before midnight. In Denver, for example, the latest any post office is open is until 10 PM. We managed to get our one drop-dead patent application on May 14, 2014 filed by reaching that post office by about 9:30 PM.
Applicants rely on USPTO’s EFS-Web server for filing patent applications. And they rely on USPTO’s promise that even if the main EFS-Web server were to crash, USPTO’s “contingency” EFS-Web server would nonetheless be functioning. But on May 14, 2014, both of these servers, including the “contingency” server, crashed. It lasted for some eighteen hours, running well past midnight on May 14, 2014.
Many applicants simply lost the filing date. Such an applicant, planning to e-file in the last few hours of May 14, 2014, and finding the main EFS-Web server to be broken, and then finding the “contingency” EFS-Web server to be broken, would likely find to his or her horror that there was no post office at all that was open at that hour of the evening.
Now comes this crash that began December 22, 2015 and has continued to today, December 24.
One thing that USPTO will need to do, as I detail here, is go to Capitol Hill to get a special bill passed deeming December 22-24 to have been a federal holiday in the District of Columbia for purposes of the USPTO.
In addition, there will doubtless be some customers who hand-carried or post-office-filed patent applications and US national-phase entries during the past couple of days, and who dutifully paid the $400 penalty for failing to e-file. For each such customer, USPTO needs to refund the $400 penalty (after having gotten power from Congress to do so, as I discuss here).
After having gotten that power from Congress to refund the $400 penalty, USPTO should go back and refund it to everyone who was dinged with that fee during the massive EFS-Web outage of May 14-15, 2014.
For those customers who hand-carried or post-office-filed patent applications and US national-phase entries during the past couple of days, USPTO needs to not impose the $400 penalty for failing to e-file.
It gets worse. The TEAS-Plus system imposes a $50 per trademark class penalty on any filer of a “Plus” or “RF” (reduced fee) application who files a response by means other than e-filing. USPTO needs to not impose that penalty on those who responded to a Plus or RF office action by means other than e-filing during this system crash time.
Regarding the $400 fee (and other imposed fees for paper filings), it seems the USPTO may be able to by granting a petition to suspend the rule under 37 C.F.R. 1.183. Of course, the petition fee is $400 too… so perhaps the petition can also request waiver of the petition fee.
Unfortunately the $400 penalty for failing to e-file is statutory (from the AIA) and not rule-based. So a Rule 183 petition asking the Director to suspend the rules is unlikely to work. The USPTO needs to go to the Hill and get authority to waive the $400 penalty during EFS-Web outages such as this.
Oh yeah. Well, if the USPTO can ignore the fact that only Congress and the President can declare a Federal Holiday, seems they can also ignore the AIA.