How to cope with the massive outage at the USPTO

(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.

First a damage assessment.  As far as I can tell, the important trademark systems (for example TEAS and TSDR and TTABVue) seem to be working normally.  The broken systems, as far as I know, are limited to patent systems.

Now turning to the workarounds.

Follow-on filings.  Most follow-on filings such as responses to Office Actions and Issue Fee payments may be done by fax.  You send your fax to the Central Fax Number which is +1-571-273-8300.  Of course, in today’s world of VOIP, fax is less and less reliable (see blog article and blog article).  The greater the number of pages in your fax, the greater the risk that a VOIP connection will lead to a failure of the fax connection before the fax is completed.

You will want to use the Certificate of first-class mail or facsimile.

It is important to keep in mind the things that are not permitted to be accomplished by fax.  This includes filing of new patent applications and entry into the US national phase.

Anything that you might send by fax can likewise be sent using the Certificate of First-Class Mail procedure.  Or you can hand-carry it to the Customer Service Window, at 401 Dulany Street in Alexandria.  If you hand-carry it, bring a piece of paper that lists what is being filed (including page counts), and ask for a “date received” stamp on the piece of paper, and bring the stamped piece of paper back to your office for safekeeping.  If you choose first-class mail, include a pre-stamped pre-addressed post card that lists what you were filing (including page counts) so that USPTO can stamp it with “date received” and drop it in the mail back to you.

For such filings the way to pay by credit card will be the use of Form 2038.

Filing of new PCT applications.  if the new application that you are getting ready to file is a PCT application, then consider filing it at the RO/IB.  For a filing at the RO/IB and for an invention that was made in the US, keep in mind your Foreign Filing License situation.  If the subject matter of your to-be-filed PCT does not extend beyond that of the priority application, then you can probably rely upon the FFL that was already granted for your priority application.

Also keep in track what time it is in Switzerland.  For a same-day filing date you will need to file before midnight in Switzerland.  Keep in mind that ePCT has a banner that tells you what time it is in Switzerland.

Such an e-filing may be accomplished using PCT-SAFE but the Best Practice is to accomplish it using ePCT.

Filing of new Hague (international design) applications.  If the new application that you are getting ready to file is a Hague (international design) application, consider e-filing it directly at the IB.  Just as with PCT, you will need to consider whether you need a Foreign Filing License and whether your priority application (if any) may already provide an FFL.

Just as with PCT, keep in mind what time it is in Switzerland.

Filing of new US provisional applications.  For the filing of a new US provisional application, the options are to hand-carry to 401 Dulaney Street and Priority Mail Express.  For a PME filing you will want to carefully follow Rule 10, which among other things requires that your Postal Service tracking number appear on the topmost page of the documents in the PME envelope.

Fortunately the $400 penalty for failing to e-file does not apply to provisional applications.

See the comments above about getting a receipt if you hand-carry, or using a return post card if you use Postal Service.

Filing of new US design applications.  Keep in mind that the $400 penalty for failing to e-file does not apply to design applications.  You can hand-carry the application or use Priority Mail Express as mentioned above for provisional applications.

Filing of new US plant applications.  Keep in mind that the $400 penalty for failing to e-file does not apply to plant applications.  You can hand-carry the application or use Priority Mail Express as mentioned above for provisional applications.

Filing of new US non-provisional utility applications.  Unfortunately the $400 penalty for failing to e-file is statutory, meaning that the Director cannot waive that penalty.  The sting is reduced for small entity filers to $200.  And micro entity filers need only pay a $100 penalty.

Again the filing paths are hand-carry to 401 Dulaney Street and Priority Mail Express.

See the comments above about getting a receipt if you hand-carry, or using a return post card if you use Postal Service.

For any application that you are getting ready to file that you think will need to be a US non-provisional utility application, consider whether some other type of filing will work as a stop-gap measure so as to avoid the $400 penalty.  If you are merely trying to nail down a filing date for non-design subject matter, consider whether a provisional might serve almost as well.  Or consider whether a PCT (filed in RO/IB) or a Hague filing (filed at the IB) might serve almost as well.

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