Well, folks an hour ago at 7AM Eastern Time, the following systems were all unresponsive:
Now at 8AM Eastern Time, the following systems look like probably they are responsive:
Given which systems worked and which did not, I have some guesses what might have caused the massive outage. I will post more in a few minutes.
Here is a bit of an update at about 7AM from an external observer on the massive system crash at the USPTO. The following systems are unresponsive:
Probably other systems are unresponsive as well. Those are the ones that I checked.
As a reminder if the type of patent application that you want to file is a PCT application, you are going to want to figure out whether you can use RO/IB instead of RO/US. See this blog post for more about this.
The USPTO web site provides fallback paths for e-filing patent applications and trademark applications. Each of the two paths involves sending email to the USPTO. Each of the two paths is coded wrong in terms of the HTML. This blog posting tells you what’s wrong in the HTML coding and how to get the paths to work.
The email path for patent e-filing. Here is how it looks to the eye in the USPTO’s web page telling you the email path for patent e-filing:
The email address displayed is “PatentApp15DEC21@uspto.gov” and it appears in the color that the USPTO uses for clickable links. Here is the HTML source for that part of the web page:
<a href=”https://PatentApp15DEC21@uspto.gov/” target=”_blank” style=”background-color: rgb(255, 255, 255);”>PatentApp15DEC21@uspto.gov</a>.
Those who know HTML immediately see the mistake. The thing that appears before the colon is called the “protocol” and the protocol that the USPTO person specified was “http”. The USPTO person should have specified “mailto”. Had the HTML coding been done correctly, clicking on the link would launch the reader’s email client with the start of an email message to that email address. Instead, clicking on the link tries to go to a web page that does not exist.
The trailing slash was also incorrect for that protocol and the attributes “target” and “style” should not have been used. The correct HTML code is:
<a href=”mailto:PatentApp15DEC21@uspto.gov”>PatentApp15DEC21@uspto.gov</a> .
It would also have been better to put a space after the link (as you see here) so that if a reader were to try to copy and paste the email address, the reader would be less likely to inadvertently copy the period with it.
The email path for trademark e-filing. Here is how it looks to the eye in the USPTO’s web page telling you the email path for trademark e-filing:
One oddity about this paragraph is its bold-faced lead “Trademark Customer:” which is missing the plural “s” after “Customer”. Yes I realize the damage control people at the USPTO must have been in a big rush at 7PM Eastern Time yesterday when everything crashed. This web page got posted at about 8:30 PM Eastern Time yesterday and yes I am sure that the hour and a half between when the crash happened and when this page got posted must have been a frantic time. But since then, eleven hours have come and gone. Plenty of time has passed during which somebody could have fixed the HTML coding mistakes described in this blog message. And then while they were at it, the person fixing the HTML coding mistakes could have provided the missing “s” in “Customers”.
Okay back to the HTML coding mistake. The email address displayed is “TrademarkApp15DEC21@uspto.gov” and it appears in the color that the USPTO uses for clickable links. Here is the HTML source for that part of the web page:
<a href=”https://TrademarkApp15DEC21@uspto.gov/” target=”_blank”>TrademarkApp15DEC21@uspto.gov</a>.
Once again what jumps off the screen for anybody who has ever done even the simplest HTML work is that the protocol “mailto” should have been used, not “http”. (Oh, and by the way, if a link to a web page had been intended, which it was not, these days the correct protocol would have been “https”, not “http”.) Oddly, the person making the mistake did not this time include the spurious “style” attribute that was incorrectly included in the link for the patent path.
The correct HTML code is:
<a href=”mailto:TrademarkApp15DEC21@uspto.gov”>TrademarkApp15DEC21@uspto.gov</a> .
Tips for use of the two email links. A first thing to know is that email addressing is not case sensitive. Do not worry about the weird capitalization that the USPTO person used here. It is not actually necessary for the “A” to be uppercase or for the “DEC” to be uppercase.
A second thing to keep in mind is how to pay the government fees. The writer of the web page seems to be obliquely trying to say “don’t include Form 2038 in your email”. Why, I don’t know, except I suppose the rush-rush workflow that they have cobbled together for handling the emails probably assumes a sort of nearly mindless loading of the email pages into IFW. And we already know they recommend (correctly) that filers not e-file Form 2038 in a way that is likely to get into IFW since it might become publicly viewable instantly or later. So the only payment mechanism that is sort of half-way usable for emailed filings is the deposit account. Fortunately you don’t need to pay any fees at all to get a filing date for a domestic US patent application.
You do, though, have to pay at least the base national filing fee if the thing you are trying to do is stave off abandonment at the end of the 30 months for a PCT US national-phase entry. So you might need to use your Deposit Account for that. And of course you do have to pay for at least one trademark class to get a trademark application filing date. So you might need to use your Deposit Account for that.
They don’t say it on the web site, but I imagine if you are desperate and either don’t have a Deposit Account or have depleted it already during this massive outage, you might consider doing a hybrid filing. Send in part of the filing by email and part of the filing (the Form 2038) by fax to the Central Fax Number (which is 571-273-8300). Of course you would have to somehow think of an unambiguous way that frazzled USPTO personnel could later marry the two submissions together. For any case for which you do not yet know the application number that you are about to receive, this is probably not possible. But for a US national phase entry, I can imagine that the international application number might work as a linking clue for the frazzled USPTO personnel. And of course for follow-on submissions, the application number itself might work as a linking clue.
The remaining thing to worry about is the date that is embedded in the email address. It is a “15” but part of the outage, from midnight Eastern Time until around 6AM on the 16th, was not on the 15th. I wonder whether the USPTO is going to try to match the date of a filing with the date embedded in the email message.
Okay, folks, we are all sort of reeling from this pesky little problem that right now absolutely every external-facing USPTO system is broken. So for example if you want to try to file a US patent application, you will find that EFS-Web is broken, and you will find that Patentcenter is broken. Oh, and you remember that “contingency” EFS-Web server that was set up in 2014 so that any time the main EFS-Web server was broken, you would still have a way to file US patent applications? Well, that’s broken too.
So what if the kind of patent application you want to file happens to be a PCT application?
Did you think about the fact that there is an e-filing system at the International Bureau? Yeah! The e-filing system at the RO/IB is not broken. It is working fine right now.
Maybe what you want to do right now is feel bad that you missed my November 17 webinar entitled Picking a Receiving Office. In that webinar, I discussed in great detail the pros and cons of filing a PCT application at the USPTO (through EFS-Web or Patentcenter) or filing a PCT application at the IB (through ePCT). And this webinar was CLE accredited! Maybe now you feel bad you missed it? And this webinar was free of charge! Now do you feel bad that you missed it? Well, no need to feel too bad, because although we often do not succeed in recording these webinars, this time somehow we managed to record it. You can see the recording here. Right now if you want to file a PCT application, consider e-filing it at the RO/IB.
Now of course if the invention was made in the US, you are going to need to consider whether you already have a suitable foreign filing license (FFL). Maybe the FFL that got granted in your priority application covers (substantively) the content of the PCT application that you are getting ready to file. Or maybe your invention was not made in the US in which case the whole FFL thing is not relevant.
But the main thing to remind yourself about here is that anybody who is entitled to use the PCT system at all is entitled to use the RO/IB. So there is always the chance that your filing situation might permit use of RO/IB in which case it might not have to be a problem that the various USPTO systems are all broken right now.
(Update: more than a year has passed and Mr. Hirshfeld never answered this letter. See blog article.)
Here you can see a letter that seventy-four members of the Patentcenter listserv sent today to Drew Hirshfeld, the Acting Director of the USPTO. You can track the priority mail envelope here. The letter makes six “asks”:
All USPTO systems are broken right now. They are broken so badly that the USPTO has in desperation authorized filing new patent applications by email and filing new trademark applications by email.
The USPTO has never in all of the years that I have been in practice taken this profoundly embarrassing step of authorizing e-filing of new patent applications or new trademark applications by email.
Take a look at my blog article from two days ago where I recounted four times over the span of several years where the “contingency” server for e-filing patent applications had failed at the same time as the main server. Why? Because the backup server was in the same room, plugged into the same electrical outlet, connected to the same Internet connection, as the main server. In the year 2021 you could ask any alert schoolchild how to avoid such a debacle, and the schoolchild would be able to tell you, don’t put them in the same room, don’t plug them into the same electrical outlet, don’t use the same Internet connection for both of them.
The photograph above is a photograph that I used in a blog article from the year 2015, when I tried to shame the USPTO into moving its “contingency” server to a geographically distant location. That was six years ago.
And now today every external-facing USPTO system is broken. Every redundant server is broken, just like the main server that it is supposed to be providing a backup for. And by now the USPTO people are so embarrassed by this that they have violated 37 CFR § 1.8 and 37 CFR § 1.10 by authorizing the filing of new US patent applications by email. It is ultra vires, but I cannot imagine any patent applicant who needs a filing date today complaining. Arguably the Director will at some point sign some nunc pro tunc order under 37 CFR § 1.183 waiving all rules retroactively so that every newly filed patent application or trademark application that got filed by email will be given its filing date.
Anyway, let’s all look at the photograph above and ask ourselves what there is about that photograph that nobody at the USPTO was able to understand back in 2015 when I presented the photograph to them in 2015.
Folks, the USPTO is going to pull the plug on the PDX system on January 1, 2022. I blogged about this here. This was in part due to the efforts of The Thirty-One Patent Practitioners. You can read about the pulling-of-the-plug on the USPTO web site here. In almost every way this is very good news:
But there is one way that this is a potential trap for the unwary, and that is the purpose of this blog article. You should probably forward this blog article to every patent practitioner that you know who ever files a US patent application that claims priority from an EP patent application. Continue reading “Trap for the unwary effective January 1, 2022 – EPO and USPTO and priority documents”
I am sure that many loyal readers of this blog have been following closely the progress of the Commissioner for Patents in following through on the four “asks” about the DAS system that The Thirty-One Patent Practitioners presented in their request letter dated February 22, 2020. Right? Of course you have been following this closely. The good news is that today the Commissioner for Patents moved forward on the third of the “asks”. The Commissioner has announced that he will pull the plug on the PDX system. This is good news for patent applicants and patent practitioners, as I will describe, and we all owe a note of thanks to those thirty-one patent practitioners for nudging the Commissioner along on this. Continue reading “The Thirty-One Patent Practitioners got their third “ask” about DAS”
I choose to take partial credit, in an odd way, for a curious Notice of Proposed Rulemaking that the USPTO publicized today. The Notice proposes to change the Rule that defines what filing date you get when you e-file something about patents at the USPTO. The Rule presently contains some word salad that works out to something like “you get what time it is at the e-filing server in Alexandria, Virginia when you click ‘submit'”. The proposed new Rule contains some word salad that works out to something like “you get what time it is in the Eastern Time Zone when you click ‘submit'”. I think my April 1, 2016 blog post, in which I joked that the USPTO had moved its “contingency” patent e-filing server to the Denver patent office, is a partial cause of this Notice. Continue reading “A curious Notice of Proposed Rulemaking at the USPTO”
(Update: the letter got sent. See blog article.)
Maybe you have made use of Patentcenter, and have been disappointed with it. Maybe you have seen the ever-growing list of Patentcenter trouble tickets. Maybe you are aware of the Patentcenter listserv, a group of users of Patentcenter that hopes to help the USPTO with correcting the bugs in Patentcenter. Maybe you are aware that the USPTO has not been very responsive to repeated efforts by the listserv to set up two-way communications about Patentcenter.
You could help with this by signing a letter to the Acting Director of the USPTO, Drew Hirshfeld. You can see the letter here. The letter will close for signatures in two days (Wednesday the 15th) and will get sent on Thursday the 16th.
35 USC § 153 says:
Patents shall be issued in the name of the United States of America, under the seal of the Patent and Trademark Office, and shall be signed by the Director or have his signature placed thereon and shall be recorded in the Patent and Trademark Office.
For as long as I have been in practice, such patents have arrived in the postal mail approximately every Friday, following the Tuesday of issuance. We call them “ribbon copies” because on the cover, they have a gold seal and they used to have a representation of a red ribbon. I review the patents each week, often with some sense of satisfaction at having played some small part in the process of obtaining the patent from the USPTO on behalf of the client. We then ship each patent to the client, with a cover letter solemnly advising the client that the patent should be kept safely “among the client’s important papers”.
It seems this will come to an end, according to a new article has been posted to the blog of the Director of the USPTO. Continue reading “Cereal box got smaller but price stays the same (USPTO Director’s blog)”
