For the past eighteen hours or so, Private PAIR had been broken. (Before that, it was working for a while but with no IFW.)
Now Private PAIR is up again. This time it has IFW.
Hopefully Private PAIR will continue to be working and hopefully IFW will continue to be working.
As I reported earlier today, EFS-Web is also back in service. Hopefully it will likewise continue to be working.
EFS-Web seems to be back online today, December 27.
As we all recall, EFS-Web crashed on the afternoon of Tuesday, December 22. In my case I was in the middle of trying to file a design patent application when it crashed. Fortunately I had been doing frequent saved submissions during that project. Today when I logged in at EFS-Web, my saved submission was there. I completed the submission and clicked submit and paid the fees. As far as I know, it worked.
I say “as far as I know” because unfortunately Private PAIR is not working. So if you e-file a new application in EFS-Web, you are not able to check in PAIR to make sure it came through okay.
But anyway it is good news that USPTO seems to have gotten EFS-Web back online.
It’s perhaps too soon to assume that EFS-Web will continue to be working. Private PAIR worked for about a day (albeit without an IFW tab) and then stopped working. And now Public PAIR is working with an IFW tab.
USPTO seems to have gotten IFW back online, although only within Public PAIR.
Private PAIR worked for a little while a couple of days ago, but has not been functioning for the past 18 hours or so and is not functioning just now.
As of this morning (December 26) Private PAIR was working, albeit without IFW.
Now (evening of December 26) Private PAIR is completely broken.
EFS-Web (normal and contingency) continues to be broken.
System status unchanged from yesterday and two days ago.
If you see progress with any of the systems, please post a comment here. Thanks.
Both of the EFS-Web servers (the main one and the “contingency” one) are crashed, and have been crashed since December 22. This means that if you are going to file a PCT application in RO/US, you are stuck doing it by hand-carrying it on paper to the USPTO or running a paper application down to the post office.
So what’s the smart way to file your PCT application just now?
I am indebted to alert reader Rick Neifeld who reminded me that the smart way is to file in RO/IB. And the smart way to file in RO/IB is of course to do it by means of ePCT.
The only thing to watch out for is the Foreign Filing License (FFL) situation. You need to make sure either to already have an FFL or not need one.
The way to not need an FFL is to have an invention that was not made in the US.
The easy way to already have an FFL is to have filed a priority application in the USPTO more than six months in the past (so that you will have received an automatic FFL just because six months passed). Or check your filing receipt on the priority application and hopefully it will say that you have an express FFL.
Here is a statement dated December 24. You can see the original here.
Statement of USPTO Acting Chief Communications Officer Patrick Ross
On Tuesday night, December 22, a major power disruption to the USPTO’s data center resulted in the shutdown of our public filing, searching, and payment systems, as well as the core systems our patent and trademark examiners use. Since then, dedicated teams have been working around the clock with our service providers to assess the situation and safely stabilize and restore those systems. Repair estimates remain the same—that the USPTO will be impacted at least through December 25.
Power that comes into the USPTO’s main building feeds two power filtration systems that provide steady, “filtered” power so systems don’t suffer from damaging surges or drops in power supply. A malfunction in the power supply lines feeding these two systems caused significant damage to both systems. This is what we believe caused our systems to go down on Tuesday night.
Because of their size, these large and highly complex power filtration systems cannot be easily replaced. We are working with service providers to obtain a source of uninterrupted conditioned power to the data center as soon as possible.
The USPTO will continue to provide updates, such as yesterday’s announcement of our filing deadline flexibility, through our systems status webpage (www.uspto.gov/blog/ebiz/) and Facebook account (www.facebook.com/uspto.gov (link is external)). With that information, users can make informed decisions about how best to allocate their own time and efforts while the problem is being addressed.
Our IP system is vital to our 21st century knowledge economy. Therefore, having timely and efficient public access to all of our agency’s filing, searching, and payment systems is also vital. The USPTO is mindful of our customer’s needs and appreciates the continuing patience.
So let’s try to put this into plain language. Some years ago, USPTO spent oodles of money installing redundant “filtration systems” that are intended to protect USPTO’s e-commerce servers from problems with the electricity provided by the electric company. On December 22, a problem happened with the electricity provided by the telephone company. Every one of USPTO’s e-commerce servers promptly crashed. I can’t quite put my finger on what sounds wrong about that.
It is now December 25. About ¾ of USPTO’s e-commerce servers (the least mission-critical servers) are now back online. So clearly somebody has figured out how to get power reconnected to servers. Yet, though somebody has figured out how to get power reconnected to ¾ of the servers, still the EFS-Web and TEAS and IFW servers are broken.
The statement is not as clear as it might be, but I guess the situation is that the power that has been connected to the non-mission-critical servers is power that cannot be said to be “uninterrupted conditioned power”. And until USPTO is able to restore “uninterrupted conditioned power”, USPTO is nervous about flipping the power switches to turn the mission-critical servers (such as EFS-Web and TEAS and IFW) back on.
Too bad that USPTO had not followed suggestions from years ago to move the “contingency” EFS-Web server to a geographically diverse location.
Anyway, “uninterrupted conditioned power” is actually quite easy to get. USPTO could go on Amazon and place orders for two or three dozen of the biggest UPSs and they would be delivered the next day. Or USPTO could dispatch employees to stop by all of the nearby Best Buy stores and buy all of the big UPSs.
Two or three dozen big UPSs would be more than enough to power the USPTO mission-critical systems.
Clicking around in various USPTO e-commerce systems, I see no progress from yesterday.
If you see progress with any of the systems, please post a comment here. Thanks.
Every external-facing system at the USPTO crashed two days ago on December 22, 2015. As of today, December 24, most of the systems are still broken. (In another blog post I review the status of the various systems up to the present time. I also describe the administrative steps the USPTO still needs to do to remediate the crash. I also discuss the redundancy measures that USPTO should have taken years ago but did not do, and now needs urgently to do.)
In the past, when a USPTO e-filing system failed, the rather brusque advice to the would-be filer of a patent application was that the customer could go to the post office instead of e-filing. The customer was further told that the $400 penalty for failing to e-file would not be waived. Translated into plain language, the would-be filer of a patent application was being told to pound sand.
In the aftermath of the May 14, 2014 massive crash, in which both EFS-Web servers crashed for some eighteen hours, thousands of customers who went to the post office were dinged with the $400 penalty. We at Oppedahl Patent Law Firm LLC were dinged for that penalty for the one urgent patent application that we filed at the post office on the evening of May 14. Pound sand indeed.
The most recent system crash that knocked out both of the EFS-Web servers (the main one and the “contingency” server that USPTO promises will always be working even if the main one crashes) happened on the afternoon of Tuesday, December 22, 2015. Just over twenty-four hours later, after the close of business on Wednesday, December 23, 2015, the USPTO made an announcement that was (I expect) intended to be much more customer-friendly than the previous “pound sand” policy. Here is what the USPTO announced yesterday evening:
In light of this emergency situation, the USPTO will consider each day from Tuesday, December 22, 2015, through Thursday, December 24, 2015, to be a “Federal holiday within the District of Columbia” in accordance with the description and regulations in this official notice posted here: https://www.uspto.gov/blog/ebiz/.
At first blush, this looks like a really smart and customer-friendly way to address the massive server crash. The practical consequence, as I blogged yesterday, was that filers would get a free pass on anything that needed to be filed on the 22nd or 23rd or 24th, and anything that was due to be filed that day (or on the 25th or 26th or 27th) could be postponed until the 28th. Nobody would have to scramble around trying to find a post office that was open late. Nobody would have to pay the $400 penalty for failing to e-file. The problem had been remediated.
But several alert members of the patent practitioner listserv clued me in that I was wrong to think that this action by the USPTO would remediate the problem. Mere minutes after USPTO’s announcement that it would “deem” these three days to be federal holidays in the District of Columbia, alert list member David Boundy wrote:
Does the statute give the PTO authority to “consider” a day to be a holiday? No. That declaration has to come from either the President or Congress.
35 U.S.C. § 21(a) gives the Director the authority to “consider” a paper to be timely filed if it is timely mailed, but § 21(b) on holidays has no such grant of authority.
Maybe the PTO can “consider” papers that are actually filed late to be timely, but I don’t know where a court would find similar authority when an issued patent is tested. The PTO has the authority to waive regulations (and thus can allow extension fees to be tolled for two days), but they don’t have the authority to define “holiday” for purposes of statute.
This sure looks to me like the PTO taking a bad situation and making it worse — give a promise that they can’t deliver on, and invite detrimental reliance.
(What? You don’t belong to the the patent practitioner listserv? Time to join!)
USPTO is going to have to go to the Hill to get a special bill passed, deeming December 22-24 to have been a federal holiday in the District of Columbia at least for the purposes of the USPTO. If USPTO fails to do this, there will be later litigations in which infringers argue (and might well successfully argue) that the USPTO only had the power to waive rules, and did not have the power to waive the statute.
While the USPTO is visiting at the Hill asking for a special bill to fix this December 22-24 problem retroactively, USPTO might as well ask that Congress undo the $400 penalty for failing to e-file that came into effect with the America Invents Act. Or at least ask that Congress give the USPTO the power to waive that penalty when needed.
