Today is Thursday, November 16. USPTO leadership shut down PAIR and EFS-Web at about 11:59 PM on Tuesday, November 14. We can reflect on things with two days’ perspective.
The meaning of “after”. One member of the Patent Center listserv pointed out that the USPTO leadership ought to have looked up “after” in a dictionary. The USPTO said:
After November 15, 2023, EFS-Web and Private PAIR will no longer be available.
But the unavailabiity of EFS-Web and PAIR began on November 15, not “after” November 15.
Even now, USPTO says to use EFS-Web as a workaround for bugs in Patent Center. See these three workarounds that are listed today (November 16) on the Patent Center information page:
But of course one cannot actually follow this advice from the USPTO, because the USPTO shut down EFS-Web two days ago.
The buggy status. As of 11:59 PM on November 14, 2023 (the moment that the USPTO shut down PAIR and EFS-Web), the number of outstanding bugs in Patent Center was about one hundred. This situation was unacceptable then, and continues to be unacceptable.
Failure to scale. As of a week ago, just over half of the patent e-filing activity by USPTO customers was on Patent Center, meaning that just under half of the activity was still being done on PAIR and EFS-Web. What this meant, in plain language, was that the shutdown of PAIR and EFS-Web would roughly double the traffic on Patent Center. And, predictably, Patent Center is collapsing under the strain. A user can log in and click to do a particular task (not necessarily a search) and can be greeted with “search limit reached”.
This error message can happen even if the particular task being clicked on is the very first thing the user tried to do after logging in. The problem, of course, is failure to scale. Another indication of failure to scale is this “access error” problem that users report frequently:
The “access error” is due to a timeout — a failed attempt for one part of Patent Center to make a query to some other part of Patent Center.
USPTO leadership ignored warnings from the patent community. In the weeks leading up to the shutdown of PAIR and EFS-Web, many letters got written to USPTO leadership:
- One Hundred Seventy-Eight members of the Patent Center listserv wrote to USPTO on September 29, asking the USPTO to postpone the shutdown of PAIR and EFS-Web.
- AIPLA wrote to USPTO on October 31, asking the USPTO to postpone the shutdown of PAIR and EFS-Web.
- NAPP wrote to USPTO on November 2, asking the USPTO to postpone the shutdown of PAIR and EFS-Web.
The USPTO proceeded with the shutdown anyway.
Harms to the patent community. Just within my firm alone, during the two business days that have passed since the shutdown of PAIR and EFS-Web, we found ourselves spending three time periods of over thirty minutes each, struggling to carry out seemingly simple tasks in Patent Center that ought to have consumed at most five minutes each. The economic loss to my firm was over $1000. Members of the Patent Center listserv reported dozens of similar struggles during these past two days. I’d guess that similar struggles happened at least ten thousand times to members of the patent community during these past two days. I’d guess the harm to the patent community has been on the order of five million dollars per day.