Bluesky: @oppedahl.com
As I reported to you on July 20, 2018 (blog article), the search fee paid in US dollars by US filers for a PCT search carried out by the EPO will drop on September 1, 2018.
Presently $2207, it will soon drop to $2095.
This means that if you are getting ready to file a PCT application, and if you are a US filer, and if you are planning to select EPO as your ISA, and if you have the flexibility to postpone your filing date to September 1, 2018, you can save some money by doing so.
As a general matter, if you are filing something by fax at the USPTO, you should be faxing it to the Central Fax Number at +1-571-273-8300. Keep in mind that there are quite a few things that you are not allowed to fax to the USPTO, for example the filing of a new patent application or the entry into the US national phase from a PCT application.
Several members of the EFS-Web listserv (which you should join if you have not already done so) have reminded me that in the special case of payment of an Issue Fee by fax, the best fax number to use is +1-571-273-2885. (See USPTO web site here and here.)
The USPTO does not, unfortunately, mention this on its “Filing documents during an outage” page.
Note as well that Form PTOL-85B has a Certificate of Transmission designed into the form. This will satisfy the requirements of 37 CFR § 1.8. Note that you will probably need to include Form 2038 if you are trying to pay the Issue Fee by fax, and note further that USPTO rules say that when you send in Form 2038 by fax, it is required to be ink-signed, not virgule-signed (in other words you are not allowed to use an S signature under 37 CFR § 1.4).
Keep in mind, too, that given the migration away from landlines and over to VOIP telephone lines, the use of facsimile (fax) is getting less and less reliable (WIPO for example is discontinuing incoming faxes because of this). It is unfortunate that USPTO continues to rely upon fax as its backup system in the event of a crash of EFS-Web.
Update: the USPTO web site now says:
Applicants affected by this outage will have an option to avoid or receive a refund of paper filing fees. For such applicants, the director will prescribe a procedure for re-submitting applications electronically to receive a refund of the paper filing fee (or to not incur a fee if not yet paid). Applicants who follow this procedure will maintain their original filing dates for applications filed by paper during the outage. Details of this procedure will be identified on this page when they are ready. In the meantime, applicants should continue to file and pay associated fees pursuant to current laws and regulations.
I have posted a new blog article about this.
The EFS-Web system crashed early in the morning of Wednesday August 15, 2018. Many filers will be forced to pay the $400 penalty for failing to e-file, despite the fault lying with the USPTO. What, if anything, can be done about this? Continue reading “Getting back your $400 penalty for failing to e-file”
USPTO has published a content-free page about the massive system outage that (among other things) has broken Private PAIR and EFS-Web:
At approximately 4:30 a.m. ET on August 15, 2018, PALM experienced an issue during maintenance that impacted its ability to function properly.
Yes, that tells us a lot about what happened (not!).
It is sort of true that the EFS-Web Contingency Server is sort of working. I successfully e-filed a design application on Friday using that server — or at least I think I succeeded. Of course I will not really know whether I succeeded until USPTO gets Private PAIR working again.
There are anecdotal reports that the EFS-Web Contingency Server does not work for entry into the US national phase.
See two webinars about workarounds, for which recordings are available.
The chief takeaway from the content-free page is that USPTO commits to posting updates every day at 10AM and 4PM until things are back to normal.
As a reminder, if the application that you are trying to file happens to be a PCT application, consider filing it at RO/IB instead of RO/US. In other words don’t try to use EFS-Web for filing your PCT application. Use ePCT to e-file it directly at the IB. Of course if the invention was made in the US, you will need an FFL (foreign filing license). Maybe the FFL that you already received in your US priority application will cover the PCT application. Also keep track of when it will be midnight in Switzerland (ePCT will tell you what time it is in Switzerland).
A chief benefit of using ePCT to e-file your PCT application in the RO/IB is that you will instantly be able to see what you just filed. You can see the contents of your PCT application in ePCT (just like what you would usually do in Private PAIR).
When it became clear that the massive USPTO system crash was not going to end very soon, I very hurriedly prepared and presented two pop-up webinars:
The first was at 10AM Mountain Time this past Friday, and the second was an hour later.
Many hundreds of people attended. Given the short notice and trying conditions I think both webinars went pretty well. (Maybe you attended one or both webinars, in which case I would be grateful if you could post a comment below.)
I managed to record both webinars and have uploaded them to Youtube. Please understand the recordings are unedited and unpolished. (For the Office Action response webinar, skip ahead to about 1:55; for the e-filing webinar, skip ahead to about 1:01.) But I offer the recordings here in case people might find them helpful during this very trying time:
The programs are CLE accredited in California and you might get lucky and might be able to obtain credit in your state using the Certificate of Attendance that is provided. If so, please let me know at this link.
(Note that if you are going to file by fax, USPTO has a special fax number just for payment of issue fees.)
(Update as of 11:30 AM Eastern Time … the 10:30 AM repair time came and went with all patent systems still broken, and now the USPTO status page does not offer any particular prediction as to when things will be repaired.)
There have been massive outages at the USPTO before — the longest lasting one having been a four-day outage between Christmas and New Years in December of 2015.
Yesterday’s outage was originally listed on the web site of the USPTO has being scheduled to be repaired by 12:01 PM yesterday, then 4PM yesterday, then 5:15 AM today. As of right now (7 AM Eastern Time) the main patent systems EFS-Web and EFS-Web Contingency and Private PAIR are still broken. The new predicted repair time is 10:30 AM.
As the repair time has slipped three times already, one must keep in mind that the new predicted repair time of 10:30 AM might slip again.
This prompts us to remind ourselves of the workarounds for various important functions. Continue reading “How to cope with the massive outage at the USPTO”
Well, as may be seen from this chart, today’s traffic on my blog is more than double the traffic of any recent day.
I attribute this to the fact of PAIR and EFS-Web having been broken for some six hours now. Patent practitioners who can’t do their regular work then turn to my blog to help them pass the time.
The most popular articles today so far are:
Well, we are going into our fifth hour of EFS-Web and PAIR being broken at the USPTO. When a customer tries to get into EFS-Web, the very disappointing situation is that this message shows up on the USPTO web site:
EFS-Web and EFS-Web Contingency are unavailable.
The system status page on the USPTO web site says:
The USPTO is performing emergency maintenance on multiple systems which began at 12:01 a.m., Wednesday, August 15 and is expected to be completed by 5:30 a.m., Thursday, August 16 ET.
On a practical level this means that it may well turn out that it is impossible to get a same-day filing date at the USPTO for filing of new patent applications today.
Of course you can go down to the post office and file by means of Priority Mail Express. But then USPTO will ding you with a $400 penalty for failing to e-file.
This situation is unacceptable.
Keep in mind that if the thing that you need to do is filing a PCT application, you have about another hour and half during which you could file it at RO/IB. You don’t necessarily have to use RO/US as your way of filing a PCT application.
More than two years ago (on April 1, 2016) I explained (blog post) what USPTO did (or rather, should have done) to guard against this kind of failure. Unfortunately it seems that even now in 2018, USPTO permits all too many single points of failure that can lead to the main EFS-Web server and the contingency EFS-Web server to both be broken at the same time. It’s as though both e-filing servers were plugged into the same extension cord, and through a bit of bad luck somebody tripped over the extension cord and unplugged it.
Earlier today I dropped emails to several of the people at the USPTO who are in charge of these systems. One by one, each of these people sent me an automated “vacation” email. Here are some of the vacation messages:
The Denver patent office (which is quite nearby to our firm’s Broomfield office) has been open for a couple of years now.
Finally yesterday we had an opportunity to do something for the first time that we had been waiting for for a very long time. We got to conduct an in-person interview with a patent examiner in the Denver patent office!
Yes, one of our pending patent applications got assigned to an Examiner who is a teleworker located here in Colorado. And so this happy bit of luck made it possible to conduct this interview.
Oh, and for what it’s worth I am delighted to be able to report that we were able to reach agreement with the Examiner. We will soon receive an Examiner’s Amendment and Notice of Allowance, all in the first Office Action. The client is delighted at this result.
Have you conducted in-person interviews at any of the regional patent offices (Denver, San Jose, Dallas, Detroit)? If so, how did it go? Was it easy or difficult to arrange the interview with the Examiner? Please post a comment below.