Category: Patents

On August 15, 2018 the EFS-Web server for filing US patent applications crashed.  Customers then turned to the Contingency EFS-Web server.  This is the server that is supposed to be available if the main EFS-Web server were to crash.

And, sadly and predictably, whatever it is that happened on August 15 to crash every patent-related server at the USPTO, it brought down the Contingency server along with the main server.

If this had been the first time such a thing happened, that would be one thing.  But such a thing happened in November of 2016.  And such a thing happened in December of 2015.  And it happened in May of 2014.  The contingency EFS-Web server, the one that is promised to be working whenever the main EFS-Web server crashes, also crashed.

As for the August 2018 massive crash that brought down both the main system and its backup, the USPTO has said the cause was a problem with a Palm database that was essential to both systems.

As for the December 2015 massive crash that brought down both the main system and its backup, the USPTO has said the cause was a problem with a UPS (uninterruptible power supply) that was powering both systems.

USPTO never came out and said what happened on May 14, 2014 to bring down the main system as well as its backup.

USPTO never came out and said what happened on November 7, 2016 to bring down the main system as well as its backup.

What’s consistent about all of this is USPTO’s failure to follow common sense in the way that it set up the backup system.  Common sense tells you that if you have a mission-critical backup system, it needs to not be in the same building as the main system.  If you have a mission-critical backup system, it needs to not be connected to the power grid in the same way as the main system.  If you have a mission-critical backup system, it needs to not be connected to the Internet in the same way as the main system.  And so on.  A responsible system designer will look to identify any single points of failure (SPFs) that might bring down both the main system and its backup.  And for each such SPF, figure out how to reduce it or maybe even eliminate it.

None of which USPTO seems to have done.

Members of the intellectual property community have told USPTO over and over again about these common-sense measures.  The backup Contingency EFS-Web server needs to be moved to a different geographic location, connected to the power grid in a different way, connected to the Internet in a different way.  I blogged about this on November 7, 2016 and on December 24, 2015 and  on May 14, 2014.  When USPTO actually moved the Contingency EFS-Web server to Denver on April 1, 2016 (as reported here) I figured this would mean we would no longer run into the problem of an SPF bringing down the main server and its backup … but I was mistaken.  (USPTO did not actually move the contingency server as reported on April 1, 2016.)

As may be seen from the photograph above, sometimes redundancy is important.  The e-filing of US patent applications is something for which redundancy is important.  USPTO was told in 2014 and 2015 and 2016 to move its contingency EFS-Web server to a different geographic location.  USPTO failed to do so.  Now, in 2018, USPTO needs to move its contingency EFS-Web server to a different geographic location.  USPTO needs to carry out this move in an open, candid way, explaining the various SPFs and what USPTO is doing to minimize those SPFs.

Share a thought or two with the USPTO.  Please post a comment below.

The massive system crash at the USPTO began about August 15, 2018 and things were sort of almost back to normal around August 21.  During the recovery efforts USPTO posted updates that indicated that USPTO was in the position of having to reconstruct the Palm database, apparently by cobbling together various incremental backups to arrive at a reconstruction of what the database might have been like on some particular date and then applying more recent changes, eventually working toward what the contents of the Palm database would have been in the absence of whatever bad thing happened on the 15th.

Not that USPTO ever quite came clean on what exactly the bad thing was that happened to the Palm database on the 15th.  Maybe there was a ghost in the machine?

But anyway there were odd things that USPTO did around August 21, 2018 that related to a particular date from about four years earlier — June 25, 2014.  Members of the PAIR listserv noticed odd things relating to OCNs (Outgoing Correspondence Notifications).

Continue reading “June 25, 2014 and the recent massive system crash at the USPTO”

From time to time in the EFS-Web listserv, list members have commented on the need for a registered practitioner to keep the Office of Enrollment and Discipline informed of the practitioners’s mailing address changes.  I now have first-hand knowledge of the enormous fraction of registered practitioners who do indeed fail to keep the OED up to date. Continue reading “Failing to tell the OED your new address”

September 1, 2018 is a big day.  It is the day that everything changes for US utility patent applicants who are claiming priority from Chinese priority applications. Continue reading “September 1 and US utility patent applications that claim priority from Chinese patent applications”

There’s good news as reported by the members of the PAIR and EFS-Web listservs.  EFS-Web and Private PAIR seem to be working again.

Yesterday at 4PM Eastern, USPTO posted a plan:

While systems have been coming back online throughout the day, we intend to take them out of service beginning at 10:00 p.m. ET tonight [yesterday evening August 21]. Our onsite experts will be working throughout the night to further optimize system performance. We anticipate that the systems will be back online tomorrow morning [today August 22].

I told USPTO that it would have been more user-friendly for USPTO to schedule this takedown for 12:01 AM ET.  But the takedown proceeded yesterday evening as described in the posted plan.  The systems are still down now, at 6:42 AM ET.

 

Just now we went to EFS-Web and for the first time since August 14, it seemed to permit logging in to the ordinary EFS-Web system.

And we went to Private PAIR and it seemed to permit logging in.

In EFS-Web we then paid the Issue Fee in one of our cases using the online issue fee payment screen.

We then went to Private PAIR and obtained from IFW a copy of what we just filed.

We then clicked on the “Fees” tab in Private PAIR and it showed the fee that we had just paid.

Of course it is too soon to know whether this means the systems are back to normal. But it looks like maybe things are moving in the right direction.

This is quite discouraging.  With less than an hour to go before midnight, EFS-Web Contingency has crashed.

Is it just me, or is there no IFW in the Public PAIR today?

The question is, what to do about the statutory penalty of $400 which Congress established when it passed the America Invents Act.  This penalty is for paper-filing when you should have e-filed.  And for many applicants it probably seems a bit unfair if the applicant’s reason for paper-filing was that USPTO failed to provide a mechanism for e-filing.

I wrote about this problem, and about Director Iancu’s comment, here.

The folks at the USPTO have faced a problem for the last few days.  They know that Congress said paper-filers should be punished with a $400 penalty.  They know that when Congress did this, Congress was relying upon the USPTO to make sure that e-filing would always be available.  This would, as a matter of common sense, require that USPTO provide a backup e-filing server that would continue working even if the main e-filing server might crash.  Unfortunately despite what amounts to a Congressional mandate to the USPTO to provide a reliable backup server, the USPTO never did provide the mandated reliable backup server.

So what to do about the $400 penalty?  USPTO realizes it would face a firestorm of criticism if it were to fail to refund the $400 penalties, and yet USPTO realizes that because the penalty is statutory, USPTO would need to go to Congress, with hat in hand, to ask for a special bill to permit giving the refunds.  Presumably such a trip to Capitol Hill to ask for a special bill would be met with embarrassing questions like “why did the USPTO not take steps many years ago, prompted by the previous massive system crashes, to make sure that the backup server would still be working even if the main server were to crash?”

So the problem for folks at the USPTO right now is to try to figure out a way to make an end-run around the plain language of the America Invents Act which imposes this statutory penalty.  Give back the $400 even though the plain language of the statute says that the $400 must be paid.  And here are the first hints of the end-run that is apparently being devised:

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.

The idea, it seems, is that anyone who has been hit by this penalty for paper-filing during the breakdown of the EFS-Web Contingency server will be invited to “resubmit” the patent application in EFS-Web.  Then, according to a procedure that is still in the making, USPTO would give this later electronically filed application the benefit of the earlier paper filing date.

The filer who included the $400 penalty fee with the paper filing would, it seems, be able to get a refund of that fee.

What about the filing fee, search fee, and examination fee that were likely already paid in the paper-filed case?  What will happen to all of that money?  Maybe USPTO will somehow waive rules right and left to permit those already-paid fees to be transferred over to the new application that came into existence by means of the EFS-Web filing.

Or maybe the USPTO will maintain a fiction that the new e-filed case is somehow “the same application” as the previously filed paper application, sort of like what USPTO says when a Request for Continued Examination is filed.

Meanwhile what will be done about the lost PTA (patent term adjustment) that will surely follow due to the e-filed filing date being some days or weeks after the paper-filed filing date?  Will USPTO manually adjust the PTA clocks for all of the cases affected by this massive system crash?  Or will patent owners have to file (and pay for) petitions, years from now, to get back those days of PTA that were lost due to this massive system crash?

Enormous time costs and professional-fee costs will likely be imposed upon practitioners and applicants by this procedure, all so as to save the USPTO the embarrassment of doing the right thing, which would be to go to Congress and get a special bill passed that would give the Director authority to waive the $400 penalty due to system failures.

Oh and one’s heart goes out to the patent owner who, TYFNIL, asserts one of these patents in court.  It is very predictable that the accused infringer will point to the fact that the application was paper-filed, and the fact that the statute says what it says about the requirement of paying the $400, and the fact that the $400 was not paid in the application that led to the patent-in-suit.  Yes, I imagine that after perhaps $50K of motion practice, the patent owner might manage to overcome the inevitable attack upon the patent for failure to pay the $400 penalty.

I have to assume that some patent owners might just suck it up and let the USPTO keep the $400 fee, just to save the $50K that would later have to be spent fighting that litigation motion practice.