If the USPTO were to blink on the November 8 shutdown of PAIR and EFS-Web …

If the USPTO were to blink (postpone the shutdown date for PAIR and EFS-Web presently scheduled for November 8), I am quite confident that I can predict the language the USPTO will use in the “blink notice”. 

As we all know (see countdown clock), it is now four days from now that the USPTO plans to shut down PAIR and EFS-Web.  When representatives of the Patent Center listserv met on October 18 in a face-to-face meeting with USPTO people about Patent Center, the Commissioner was quite firm that the shutdown of PAIR and EFS-Web would take place as scheduled, on November 8.  She made it clear that nothing we could say to her during the face-to-face meeting would prompt the USPTO to do otherwise.

So for now, so far as anybody outside of the USPTO knows, shortly after 11:59 PM on November 7, PAIR and EFS-Web will get shut down.  Nobody (outside of the USPTO) knows if the USPTO will blink (postpone the shutdown date).  But the USPTO has blinked about other things.  For example, on the $400 penalty for failing to file in Microsoft Word format, the USPTO has blinked four times:

• • On November 22, 2021, the USPTO blinked a first time, changing the start date of the $400 penalty from January 1, 2022 to January 1, 2023.   (You can see the Federal Register notice.)
  • On December 29, 2022, the USPTO blinked a second time, changing the start date of the $400 penalty from January 1, 2023 to April 3, 2023.   (You can see the Federal Register notice.)
  • On March 9, 2023, the USPTO blinked a third time, changing the start date of the $400 penalty from April 3, 2023 to June 30, 2023.  (You can see the Federal Register notice.)
  • On June 6, 2023, the USPTO blinked a fourth time, changing the start date of the $400 penalty from June 30, 2023 to January 17, 2024.  (You can see the Federal Register notice.)

And as for the cutoff date that would be the last possible date for an applicant to include a trusted PDF file along with the risky Microsoft Word file, while still avoiding the $400 penalty, the USPTO has now blinked twice:

• • The USPTO blinked a first time on December 20, 2023, and reset the last possible date for filing of trusted PDFs from December 31, 2022 to June 30, 2023 (see Federal Register notice).
  • The USPTO blinked a second time on June 6, 2023, saying that there is now no ending date for filing of trusted PDFs (see Federal Register notice).

Given the past blinks, one supposes that there is some chance, however small, that the USPTO would blink now on the planned November 8 shutdown of PAIR and EFS-Web.    Reasons why the USPTO could conceivably blink include:

• • The paper letter that Seventy-Four Members of the Patent Center Listserv sent to the Commissioner for Patents on December 16, 2021, reporting grave concerns about the many open trouble tickets for Patent Center.
  • The email message that a representative of the Patent Center Listserv sent to the USPTO Director on June 9, 2023, showing the untruth of USPTO’s claim that Patent Center supposedly provided “100%” of the functions of PAIR and EFS-Web.
  • The survey report that AIPLA presented to the USPTO on July 28, 2023 (89% of respondents would not be comfortable with the shutdown of PAIR and EFS-Web;  only 2% of respondents felt that Patent Center was “fully ready”).
  • The paper letter that One Hundred Seventy-Eight Members of the Patent Center Listserv sent to the USPTO Director on September 29, 2023, expressing grave concerns about Patent Center not being ready for production service.
  • The request of October 6, 2023 (blog article) from the Inspector General of the Department of Commerce that the USPTO “conduct a thorough and independent inquiry [about Patent Center] and provide a response to the IG, including a detailed explanation of their review process and any corrective action, if any, they take as a result.”
  • The October 30, 2023 letter from AIPLA to the USPTO (blog article) reiterating AIPLA’s request that the USPTO postpone the shutdown of PAIR and EFS-Web.
  • The November 1, 2023 letter from the National Association of Patent Practitioners to the USPTO (blog article) asking that the USPTO postpone the shutdown of PAIR and EFS-Web.

As I say, when we met with the Commissioner for Patents on October 18, she was quite firm that the planned shutoff date of November 8 would remain in place unless, between now and November 7, some defect in Patent Center were to be identified that would literally make it impossible to file a patent application, or that would make it impossible to carry out some other critical task.  But, just as a hypothetical question, what if the USPTO were to blink on this?   If so, I am very confident that I can predict with high accuracy the language the USPTO will and will not use in communicating such a blink.

I can be absolutely sure the USPTO would not, for example, say that its reason for postponing the November 8 shut down is “Patent Center is not ready” or “we have now listened to our stakeholders including the Patent Center listserv and AIPLA and NAPP, and based on what they have told us, we now agree the right thing to do is to postpone the shutoff”.  I can be absolutely sure the USPTO would not say (blog article) “given that as recently as yesterday the EBC was telling a caller to use EFS-Web instead of Patent Center as a workaround for a bug in Patent Center, we are postponing the shutdown of EFS-Web.”

No, I can be quite confident that the language the USPTO will use will be along these lines:

the shutdown of PAIR and EFS-Web will be postponed to provide applicants additional time to gain confidence in the reliability of the Patent Center system, or

the shutdown of PAIR and EFS-Web will be postponed to give applicants more time to adjust to Patent Center.

I also predict that any such “blink notice” will also say something along these lines:

Applicants who have not yet taken advantage of the Patent Center training sessions the USPTO hosts are encouraged to do so.

The overall tone of any such blink notice will be along the lines of:

There is not, of course, anything wrong with Patent Center.  We at the USPTO know better than any applicant or practitioner what it is really like to use Patent Center, and we know that Patent Center works just fine.  We know that it won’t actually be a problem if the USPTO shuts down PAIR and EFS-Web, and the handful of users who say otherwise are mistaken.  But it is clear that some applicants have failed to attend the USPTO’s training sessions about Patent Center, and that other applicants have failed to try hard enough to get familiar with Patent Center.  It is actually the fault of the applicants, not the USPTO, that this postponement is taking place.