A small blink from the USPTO

(Update:  see this blog article for a guess as to what “increase usability for sponsored accounts with large amounts of customer numbers” means. )

For the past seven weeks, and up until just a few hours ago, the USPTO was unwavering in its stated resolve to shut down PAIR and EFS-Web at 11:59 PM tonight.  As recently as yesterday, when meeting with the National Association of Patent Practitioners, the Commissioner for Patents declined to agree to NAPP’s request to postpone the shutdown date (blog article).  Now, on the last possible day, with less than two hours to go before the close of business, the USPTO blinked. 

It is the smallest blink that a blink could be.  The USPTO says it is postponing the shutdown by a mere four business days (from November 8 to November 15, with Veteran’s Day in the middle).

The last people to try to talk the USPTO into a postponement of the shutdown date were NAPP President Rich Baker, Vice President Dan Smith, Alex Pokot, and Anne Fahrni.  They did not ask for that meeting;  the USPTO invited them to the meeting in response to the letter (blog article) that NAPP had sent to the USPTO on October 31.  They were well prepared for their meeting and they maintained a cordial yet firm advocacy during their meeting.  It seems clear from the time line that NAPP deserves some credit for today’s blink.  Each of us knows at least one or two members of NAPP — let’s please pass along a note of thanks for their efforts.

Why the blink?  In USPTO’s press release, it cites two reasons for this blink:

    • the four-day delay will supposedly permit the USPTO to “increase usability for sponsored accounts with large amounts of customer numbers”, and
    • the four-day delay will permit the USPTO to “ramp up coverage to our Electronic Business Center to respond to questions in real-time.”

As between these two reasons, the first rings hollow.  The USPTO has known for many months that the sponsorship mechanisms in Patent Center are poorly designed and do not scale well.  See for example ticket CP131 which reported a sponsorship bug to the USPTO on March 29, 2023.  Another example of a sponsorship bug is ticket CP177, reported by the above-mentioned NAPP President Rich Baker.  Given that the USPTO has known for many months about the flaws in the Patent Center sponsorship mechanisms, it rings hollow that only a few hours before the scheduled shutdown would be the time for the USPTO to abruptly announce a blink if this were really the reason.

Related to this is the implausibility that a mere four business days would somehow permit the USPTO to bring about any significant change in the function of “sponsored accounts with large amounts of customer numbers”.

The likely real reason for the blink.  Here is a comment posted to this blog at 1:06 PM Eastern Time today:

It is impossible to get through to the EBC right now (unless you have nothing better to do and can wait on hold for hours–make sure your phone is plugged in while you’re on hold). I can only imagine that the wait time will increase substantially once EFS-Web/Private PAIR are discontinued and everyone is forced to use the PC.

Given that it was impossible to get through to the EBC today, things would only have gotten worse tomorrow if the shutdown of PAIR and EFS-Web had proceeded tonight as planned.  Rich Baker of NAPP (mentioned above) had reported that during yesterday’s meeting with the USPTO (blog article), the Commissioner for Patents said that the USPTO was doing “new hiring” to try to provide more people to answer the phones at the EBC.  I have to imagine that the truthful part of the USPTO press release about the blink was the need to “ramp up coverage to our Electronic Business Center to respond to questions in real-time.”  Only this could explain the oddly small delay of a mere four business days in the date for the shutdown of PAIR and EFS-Web.

Flattening the curve.  The other thing that is doubtless going on is an effort by the USPTO to “flatten the curve”.  In recent days, the success rate by the USPTO in convincing users to migrate their e-filing traffic away from the reliable PAIR and EFS-Web systems, over to the buggy Patent Center system, had been embarrassingly poor — only just over half of the traffic had gotten migrated to Patent Center.  This meant that with the shutdown happening on November 8, the entire remaining amount of traffic (almost half) would need to shift over essentially instantly.

But consider how a game of chicken could help to flatten the curve.  The USPTO would announce seven weeks ago that the shutdown would happen on the evening of November 7.  This threat, all by itself, might scare some of the users who had been clinging to the reliable PAIR and EFS-Web systems into migrating, however reluctantly, to the buggy Patent Center system, on November 7.  (This tracks with the unreachability of the EBC today.)  It then makes perfect sense to delay the announcement of the blink until the last possible moment — in this case less than two hours before the close of business.  The reason being that at least a portion of the migration would have happened in the hours before the blink.

A postponement of a mere four business days then makes perfect sense.  Lots of users who had been clinging to the reliable but soon-to-perish PAIR and EFS-Web systems would then have another few days to try to work up the courage to migrate to to the buggy Patent Center.  This might indeed help to “flatten the curve”, spreading out what would otherwise be a one-day migration, over a period of at least a few days.

4 Replies to “A small blink from the USPTO”

  1. If practitioners lie to the USPTO, we can get disbarred.

    When lawyers at the USPTO lie to us – repeatedly – no problem.

    They say they need more people at the EBC. My first question is, You didn’t think of this before? My second question is, If you’re hiring them right now, at the last minute, how will the USPTO train these new people in time? My third question is, How will that help? Even if lack of EBC people is the problem, and even if they have time to hire and train them, all I’ve ever gotten from the EBC is “we’ve opened a ticket for the developers”

    Must be great to run a monopoly.

  2. We’ve repeatedly tried to use Patent Center in the past, knowing that it will one day replace EFS-Web. However, also repeatedly, all practitioners and staff have stopped using it because it was too buggy and difficult to work with. All that happened with forcing us to use Patent Center again yesterday was the identification of new bugs to be aware of if the transition did happen on the threatened date.

  3. Wow, one of the PTO’s reasons to retire EFS is “a paralegal could file a document without the approval of a registered patent practitioner”? Well, this is also true in Patent Center, the mechanism is just a bit different.

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