Looking back, two days after the demise of PAIR and EFS-Web

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:

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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.

And indeed now that everyone is forced to use Patent Center, many bugs have been discovered and documented.  Today alone, eleven new bugs (CP179 through CP189) were written up.

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”.

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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:

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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.

9 Replies to “Looking back, two days after the demise of PAIR and EFS-Web”

  1. Thank you, Carl, for documenting the very real harms being imposed by the USPTO on patent practitioners and the IP community. Sure reeks of waste and abuse. Where is the Department of Commerce OIG?

  2. I don’t think it matters what OIG might find even if called upon to investigate. Commerce Secretary Gina Raimondo is not going to fire Director Kathi Vidal or Commissioner Vaishali Udupa. As far as priorities go, Congress has even more incompetent and dishonest people to impeach, not that that will happen either. At most there might eventually be some huffing and puffing in a congressional hearing, but in the end, no one will be held accountable.

  3. Filing a single biotech divisional application took nearly 6 hours in Patent Center today, 11/16/2023. A large part of the time sink was a sequence listing was being submitted in ST.25 format, which had been filed and accepted in the parent application before 7/1/2022. There was no drop-down description for the sequence listing text file in Patent Center. Two paralegals tried typing in the name Sequence Listing Text File, but hitting Continue left the description blank. They tried figuring out alternatives. The Sequence Listing Help Desk was closed. They tried submitting the application and the sequence listing file with a blank descriptor and got an error message.
    Then a first call was made to the EBC. After a long hold, we were told to select General Transmittal, then pick Miscellaneous Incoming Letter for the sequence listing text file. Of course, this did not work.
    A second call was made to EBC, and we were told this time to submit the application without the sequence listing, and then upload and submit the sequence listing, which the EBC person said is the procedure they were told to use. I challenge you to find that information in Patent Center. I told the paralegal to try it, since the worst-case scenario was that we would get a notice of missing parts requiring us to submit a sequence listing (an added cost), but we would not lose the filing date. Those steps did work, and the sequence listing was uploaded. BUT, the Sequence Listing Report says the sequence listing is defective because, wait for it, the sequence listing must be in ST.26 format because this application was filed today, i.e., after July 1, 2022. I expect to get a communication from the USPTO telling me the sequence listing is non-compliant and I will have to file a response saying it is compliant because it complies with the sequence listing rules for applications filed before July 1, 2022, and was also accepted as is in the parent application.
    If EFS-WEB was still up and running, this application would have been filed in under 2 hours at most.
    This one application tied up one paralegal for over six hours, a second one for an hour, and me for over two hours.
    What an incredible waste of time and resources for our firm and for everyone else struggling with Patent Center because the USPTO refused to listen to the patent community who funds the USPTO with our user fees and went ahead and shut down EFS-WEB and PAIR when Patent Center was not and is not ready for full scale use.

  4. Can’t see my correspondence – Patent Center doesn’t show it to me.

    Just tried to pay an issue fee with petition to revive. Because of all the problems I’ve heard about with PC’s online issue fee form, I decided to file a PDF of form 85-B that I filled out and save. First PC timed me out. Then when I went to pay the fees, it didn’t show the issue fee – I could only pay the petition fee, because apparently it’s not programmed to understand that one might need to pay a petition fee and an issue fee together. So I had to submit the two documents and save the acknowledgement page, then pay the petition fee and save that acknowledgement page, then go back and pay the issue fee separately and and save that acknowledgement page, then pay the issue fee and save that acknowledgement page.

    Great job, PTO.

  5. We struggled on Nov 15 to file patent appln in Patent Center. Patent Center was not accessing payment system. Finally got through on third attempt. Added 30 minutes to application filing time.

  6. I’m an examiner. We complain to OCIO constantly. Nothing happens. Few years ago some examiners got in a shouting match w/ OCIO director during a “listening session” (or whatever they are called now). Again, nothing happens. Well, one thing always happens: OCIO complains they don’t have enough money. When you guys lose service, our end usually does, too (and vice versa). But, no worries, our DEI is well-funded and doing a magical job (in fact, the DEI head here got a big bonus this year, for doing IDK what)!

    1. Hi Aaron- Thanks for letting IP practitioners know that examiners also suffer from the USPTO’s IT decisions. If it is something you could share, I’d be interesting in knowing who the DEI head is?

  7. I filed an application on Patent Center Saturday afternoon 11/18. On attempting to pay the filing fees, the system seemed to crash and failed to generate a payment acknowledgement receipt. The application never became viewable that day. So, I was unable to confirm in Patent Center whether the fees were actually paid. Fortunately, I was able to confirm by checking my credit card online, where I saw that the charge hit. So, no thanks to Patent Center, I could rest comfortably that the fees had been paid.

    I am able to see the application today, Monday, but I receive the dreaded “access error” message when I attempt to view anything in the image file wrapper. I contacted EBC, and after a lengthy hold I was informed that the only thing they can do is escalate the matter to the developers–leaving me dead in the water for viewing documents in the IFW. Sadly, this is not surprising.

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