Bluesky: @oppedahl.com Mastodon.social: @ant-like
It looks like all USPTO systems (TEAS, MyUSPTO, Patentcenter, EFS-Web, PAIR) are broken or very very sluggish. Listserv members are reporting timeouts, forced logouts, and lack of responsiveness from the USPTO systems.
As is so often the case during such crashes, there is no mention or acknowledgment of any of this on the USPTO system status page.
Friday, December 24, 2021 will be a federal holiday in the District of Columbia. This means the USPTO will be closed that day. This means that any action that might be due at the USPTO on December 24 or December 25 or December 26 will be timely if accomplished by Monday, December 27, 2021.
Friday, December 31, 2021 will be a federal holiday in the District of Columbia. This means the USPTO will be closed that day. This means that any action that might be due at the USPTO on December 31 or January 1 or January 2 will be timely if accomplished by Monday, January 3, 2022.
The TEAS system is the system that trademark practitioners use to generate documents to be reviewed and e-signed by clients. A typical form to be reviewed and signed by a client might be a new trademark application or a six-year renewal or a ten-year renewal. There is a sort of design flaw in the TEAS system that represents a long-felt need for correction. This blog article describes the design flaw and describes two possible ways to address the design flaw. Continue reading “A long-felt need in the TEAS system”
Here is what the USPTO announced a few minutes ago about the massive system crash that started yesterday evening:
On Wednesday, December 15, 2021, at approximately 8:30 p.m. ET, the United States Patent and Trademark Office (USPTO) proactively and deliberately shut down all external access to systems in light of a serious and time-sensitive concern related to Log4j vulnerabilities. Although this preventative measure impacted those seeking to file documents, the USPTO needed to shut down the systems to perform necessary maintenance to safeguard not only our infrastructure, but also the security of our filers’ data. The USPTO created a path for filers to continue to submit applications via email during the outage. Around 8:30 a.m. ET on Thursday, December 16, maintenance was completed and all external systems were restored.
Several things can be said about this.
First, the USPTO announcement is not accurate about the start time of the crash. USPTO customers started seeing login problems at about 7PM Eastern Time.
Second, I will note that alert blog reader Chris called it! Chris posted a comment very early this morning that you can see here (scroll down a bit) correctly guessing that this would turn out to be USPTO’s explanation for the outage.
Third, yes we have all been reading about Log4j vulnerabilities and yes of course it is prudent to take whatever steps one needs to take to protect against those vulnerabilities. But this particular vulnerability was publicly disclosed on Thursday, December 9. Nowhere in the USPTO announcement is there any explanation as to why the corrective action was taken only six days later. Nor is there any explanation why the starting time selected for this work was during working hours (for USPTO customers) rather than at the normal time for such corrective actions which is shortly past midnight on whatever day the work is to be done.
I have some guesses as to what went wrong to bring down all of those USPTO systems yesterday evening. Continue reading “My guesses as to what caused yesterday’s massive system crash”
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.
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.
As many readers know, in October of 2021 Facebook picked a new name for their company, namely “Meta”. But it sort of looks like maybe somebody at Facebook did not do a good enough trademark clearance search back when the company was considering whether to use “Meta” or some other proposed mark as their new name. Anybody who wanted to do so could have clicked around in October of 2021 in the USPTO trademark database and could have seen that two months earlier, an Arizona company called Meta PC had filed a trademark application for “Meta” for computers and several other computer-related goods. (You can see the trademark application here in TSDR.)
Continue reading “The fight over the “Meta” trademark heats up”
It will be recalled (blog article, August 7, 2021) that fifty-four trademark practitioners wrote to the Commissioner for Trademarks, asking that the Trademark Office computer systems be improved in several ways. I expect that at some point we will hear back in writing from Commissioner Gooder, but I thought I would pass along that I have heard back verbally from the Commissioner about this.
Briefly, the letter (which you can see here) asks that the Trademark Office enhance its computer systems so that there is room for more characters in the attorney docket number field, and so that there is room enough for the entirety of the holder address information that the International Bureau provides in Madrid Protocol designations, and room for more characters in the various mailing-address fields in the Trademark Office computer systems.
Continue reading “Commissioner for Trademarks responds to the Fifty-Four Trademark Practitioners”