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EFS-Web is broken today

(Revised at about 2AM on May 15 to reflect that well after midnight, USPTO finally got EFS-Web working again.)

As most readers know, the USPTO’s EFS-Web system is broken today.  And I mean completely broken.  You can’t get to “EFS-Web for registered users” at all — it merely takes you to a page that mentions EFS-Web Contingency.  You also can’t get to “EFS-Web for unregistered users” — that too merely takes you to the page that mentions EFS-Web Contingency.  And EFS-Web Contingency is broken too.  (It goes slow as molasses and never actually lets you “submit”.)

For filers, the main thing to keep in mind is that if you are filing a new patent application or you are entering the US national stage, you can’t fax it in.  You will have to take it to the Post Office and send it by Priority Mail Express (née Express Mail).  We sent our youngest associate to the late-night Post Office in Denver a few minutes ago and he successfully mailed the one patent application that had to go out today from our office.

For lesser tasks such as responding to an Office Action you can try to fax it.  As a reminder the fax number is 571-273-8300.  It looks like USPTO’s fax server is unable to keep up with the traffic, however.  One of our faxes has failed three times and we have not managed yet to get it to go through.  We finally had to resort to a Certificate of First-Class Mail for an envelope that we dropped into a mail box shortly before midnight.

Having delivered the main emergency message, I will now talk about what USPTO did wrong that led to today’s disaster.

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USPTO could be nicer to PDX and DAS users

(Further update:  We win!  As you can see here, the Commissioner answered our letter.  The USPTO says it will stop the foot-dragging on retrieval of electronic certified copies.)

(Update:  A letter got sent on February 22, 2020 to the Commissioner for Patents at the USPTO, asking the USPTO to stop its foot-dragging on retrieval of electronic certified copies from DAS and PDX.  See blog post.)

If you fail to get your certified copy of your foreign priority application into the hands of the USPTO by sixteen months, you’ve lost your priority claim and will have to file a petition to get it back.  Suppose you try to do this electronically and inadvertently get it wrong?  USPTO’s present policy is to wait until past sixteen months to let you know.  That’s not nice, and USPTO needs to change its policy.

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What will happen next with the Supreme Court case of CLS v Alice (software and business method patents)

In this blog I will try to review what has happened thus far in the CLS v Alice case, which deals with software and business method patents.  And I will talk about what the Supreme Court is likely to say when it decides this case next month.  Finally I will discuss the likely effect of the upcoming Supreme Court decision on the tens of thousands of already-issued software and business method patents.

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USPTO should stop the forced logouts from Private PAIR and EFS-Web

When you log in to USPTO’s Private PAIR and EFS-Web system, you have to go through a cumbersome process.  You have to mouse around and find a “crypto certificate” on your hard drive that proves your identity.  You have to wait for a very slow “Java applet” to run, taking some tens of seconds.  And you have to type in a password that is required to contain at least one smiley face (just kidding).  This would not be so bad except that this system logs you out at more or less random times, after anywhere from ten to sixty minutes of inactivity.  A quick trip to the bathroom or coffee machine can lead to your having to log in all over again.  In a normal work day a USPTO customer might be forced to log in again a dozen or more times.

A couple of years ago I surveyed users of PAIR and EFS-Web about this system of forced logouts.  The vast majority of respondents said that for them, this system of forced logouts is a bug, not a feature.  I passed the results of the survey along to USPTO people who are responsible for this system.  Unfortunately in the two years that have passed since this survey, USPTO has not done anything to improve this situation.

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Fresh air from the Trademark Office

It’s easy to gripe when the USPTO does something, or proposes to do something, that makes it harder to get a patent or harder to register a trademark.  But it’s only fair to recognize those times when USPTO gets things right by making something easier or better.  As a recent example, the USPTO got it right when it relaxed certain requirements for getting a patent application onto Track I.  And the USPTO got it right when it relaxed rules for CPAs in design patent applications.  Now USPTO has proposed rules which would make it easier (and cheaper) to get and renew a trademark registration.

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What USPTO should do — make patent assignments viewable

USPTO, in response to pressure from the White House and from big companies that are recipients of cease-and-desist letters, recently published proposed rules with a stated goal of promoting transparency in ownership of patents.  There are many things wrong (blog) with the proposed rules.  But there is a simple thing that the USPTO could do to promote transparency in ownership of patents that would not require rulemaking at all — make patent assignments viewable.

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A blog with a name – “Ant-like Persistence”

About two months ago I launched this blog.  It took me a while, but now I have picked a name for the blog.  The alert reader will recall Learned Hand’s (perhaps backhanded) compliment to patent practitioners, citing their “ant-like persistence” (Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924).  With a nod to those patent practitioners who at the start of the twentieth century exhibited the ant-like persistence that inspired Learned Hand to write this colorful phrase, I hereby dub this the “Ant-like Persistence” blog.