Category: Patents

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.

For many years it has been possible to recycle ADS bibliographic (“bib”) data from a parent case into a child case.  To do this, you find the old ADS and export the bib data in XML format.  Then you import the XML file into a new ADS.  Often you will find that before you import the XML file into the new ADS, you need to edit the XML file using Notepad.

USPTO has just announced a new EFS-Web functionality with the catchy name Enhanced Initial Web-based Application Data Sheet.  I’ll call it EIWADS.

Continue reading “Recycling ADS data from a parent case”

On November 22 I offered suggestions (see blog post here) as to how USPTO could do better in receiving updated bibliographic data.  I also blogged about what was at that time the Best Practice for updating bib data.

On December 21, USPTO announced its new Corrected Web-based Application Data Sheet functionality.  I will describe it in this post.  I think it will probably be a Best Practice to use this functionality (for the applications for which it may be used) rather than legacy practice.

Continue reading “USPTO’s new “Corrected Web-based Application Data Sheet””

On December 12 I blogged about a problem namely that when USPTO revised its computer-readable ADS form, USPTO broke the XML import feature.

Alert reader Bruce Young tipped me off to a response from the USPTO which you may see here.   USPTO says:

Due to a change in the Adobe software used to create PDF fillable forms, the “Import Data” function is unavailable in the new ADS PDF fillable form.  We are working with the vendor to troubleshoot this problem and apologize for any inconvenience.

Hopefully in future when USPTO (or its vendor) tinkers with the ADS form, part of the acceptance testing will include looking to see whether the tinkering has broken the XML export or XML import feature.

While they are at it, I will mention that for some six years now, I have been gently but persistently asking the USPTO to please publish a DTD (document type definition) that pins down the USPTO as to the names of the XML tags and the tree structure of the XML for the ADS.

In any normal XML environment, the party establishing an XML import or export function publishes a DTD.  For six years now, USPTO has foot-dragged and has not done so for the ADS.  Maybe this activity of USPTO and its vendor will be a good moment for USPTO to reveal the DTD.

There have been several reports on the EFS-Web listserv that EFS-Web is puking on its own PDF forms.  The chief trouble area is the Application Data Sheet form.  The user carefully creates a computer-readable ADS and uploads it to EFS-Web.  EFS-Web then pukes on the form, stating (falsely) that it is not really a PDF file.

The workaround is to print the ADS to PDF using CutePDF.  Then that PDF file can be uploaded to EFS-Web.  EFS-Web will gripe that it is not an official USPTO form but will at least permit the e-filing task to be completed.

In the old days I would have characterized this as a Big Problem because in the old days, EFS-Web actually auto-loaded the bibliogaphic data into Palm (and from there into PAIR).  But (as I blogged here) USPTO has been gradually chipping away at this and now almost none of the bib data gets auto-loaded.  So you might just as well upload a CutePDF version into EFS-Web.