Ant-Like Persistence

Today is Monday, January 11.  As of today there are still many patent applications which applicants filed on Tuesday, January 5, that are lost within the USPTO.  They cannot be viewed in PAIR.  I reported this problem on January 8.

It is puzzling that this loss of newly filed patent applications is not mentioned at the USPTO Systems Status and Availability page.

We filed ten new US patent applications that day.  And we entered the US national phase in one case on that day.  And we cannot see any of those filings in PAIR.  USPTO’s internal standard is that a newly filed document should be visible in PAIR within one hour.

We reported these lost patent applications to the EBC, and this is what we heard back from the EBC:

Thank you for contacting the Electronic Business Center regarding this matter. We are currently experiencing issues with applications that were filed on 1/5/2016 not loading into the system properly which caused issues with paying fees and users are experiencing issues with trying to log back into the system to pay fees later or bringing the application up in Private Pair to view.  The USPTO is aware of the matter and are currently working to resolve those issues.  We apologize for the inconveniences.

We have seen many, many cases where it took longer than it should have taken for something filed in EFS-Web to become visible in PAIR.  But this delay of six days is unprecedented.

 

 

As I mentioned here, one of the open questions was how long it would take the USPTO to get around to processing the large number of fax and paper filings that filers filed in desperation during the outage of all USPTO systems from December 22 to December 27.

There is a document that we fax-filed on December 26.  And since December 26 we kept checking PAIR every day to see when USPTO people would get around to posting the document to IFW.

The document finally turned up in IFW on January 6.  In other words, it took eleven days for the USPTO to take this fax and put it into IFW.

We’re still not out of the woods on this, because of course the mere presence of a document in IFW does not permit the Examiner to actually do anything with the document.  Once the document gets into IFW, it has to pass through various reviews by paralegals and Legal Instruments Examiners.  Only after they have all blessed the document will it get forwarded to the Examiner.  Today is January 8 and the paralegals and LIEs have not yet processed this document.

Maybe the biggest loser in this débacle was the hapless Examiner.  Recall that this was a finally rejected case in which the Examiner had said if we were to do X, she could allow the case.   And the document, which we had been trying to e-file since December 22, did X.  If things had proceeded normally, the Examiner could have disposed of the case (through allowance) within the calendar quarter ending December 31.  Instead this case is still dragging on in January, and even now the Examiner is not able to dispose of the case.  The Examiner will not even be able to dispose of the case within the present biweek.

The client also loses out.  This case will eventually get issued, but the issue date will be at least two weeks later than it should have been.  The client will lose two weeks of patent term with this débacle.  (The Patent Term Adjustment process will probably not help in this particular case.)

The policy goals of the Patent Prosecution Highway are served only if PPH requests are granted promptly.  Unfortunately the USPTO is failing to grant PPH requests promptly, and things are getting worse instead of better.  Here’s the latest. Continue reading “Office of Patent Petitions backlog worsens”

Our office e-filed a dozen patent applications at the USPTO on January 5, 2016.  Today is January 8 and even now, not one of these patent applications is visible in PAIR.

What we have heard from the Electronic Business Center is that this is a known problem.  Other filers who filed patent applications on January 5 have likewise been unable to see the applications in PAIR.

Let’s hope that the USPTO gets this problem straightened out soon.

This sort of problem at the USPTO is yet another reason to file a new PCT application in the RO/IB rather than RO/US.  Newly filed PCT applications at RO/IB (if filed electronically using an ePCT eOwnership code) are visible in ePCT instantly.

As a reminder, a US-based would-be filer in RO/IB needs to make sure that either (a) the invention was not made in the US, or (b) a Foreign Filing License has already been obtained, perhaps through the priority document.

 

(See followup article here.)

Yes the USPTO managed to get its systems more or less functioning by December 28 after the massive crash that ran from December 22 to 27.  But even now, two weeks after the crash, applicants are still affected by it daily.

As one example, there was a response to an Office Action that we had hoped to e-file in EFS-Web on December 22.  No luck there, the system crash made it impossible to e-file anything then or for some days thereafter.  So in this particular case we fax-filed the response.  We did that on December 26.

More than a week has passed — five business days — and there is no hint or suggestion in PAIR that we filed a response.  Nothing is visible in IFW.  Nothing is listed in the Transaction History.

The Office Action to which we responded was one that said “do X and I will allow the case”.  The response which we fax-filed does X.  This response, if only it were visible to the Examiner, would permit the Examiner to dispose of the case.  It would permit our client to receive a Notice of Allowance and to pay the Issue Fee.

But I’d guess that ten times more papers got fax-filed during the period of December 22-27 than would typically have been fax-filed during a normal six-day period.  In our experience it normally takes the USPTO a week or more to get a fax-filed document into IFW.  I imagine that it will take six weeks or longer for USPTO to work its way out of the massive fax backlog that USPTO now faces.