USPTO will be closed on December 24, will reopen as usual on December 26

The President has signed an executive order dated December 19, 2018 closing most federal government offices (including the USPTO) on Monday, December 24, 2018.  This of course raises the usual question whether or not the closure constitutes “a federal holiday in the District of Columbia”.  To answer this question, Director Iancu has issued a statement dated Friday, December 21, 2018 deeming the closure to be such a federal holiday.

This means that any response that would be due at the USPTO on December 22, 23, 24, or 25, 2018 will be timely if it is filed on Wednesday, December 26, 2018.

The US entered a partial shutdown of the federal government a few hours ago, and it would thus be natural to wonder whether this might affect the USPTO, for example when the Office would be scheduled to reopen on Wednesday, December 26.  Here is what the USPTO web site says:

… the USPTO remains open for business as normal. This is possible because the agency has access to prior-year fee collections, which enables the USPTO to continue normal operations for a few weeks. Should the USPTO exhaust these funds before a partial government shutdown comes to an end, the agency would have to shut down at that time, although a small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions.

7 Replies to “USPTO will be closed on December 24, will reopen as usual on December 26”

    1. This is an extremely good question, but perhaps not even for the reason that you are thinking. See this blog article.

      Anyway to answer your question directly, no, you cannot wait until the 26th to file your continuation or divisional. That would not satisfy the copendency requirement of 25 USC § 120.

      1. I also would not let any PCT filing deadline roll over if I were you. It could fubar you later when you go national stage.

      2. Carl, I would never intentionally take a chance on this, but regarding filing a continuation/divisional after the issue date (which falls on a holiday), do you think 35 U.S.C. 21 comes into play to allow this?

        35 U.S.C. 21 (b): “When the day, or the last day, for taking any action or paying any fee in the United States Patent and Trademark Office falls on Saturday, Sunday, or a Federal holiday within the District of Columbia the action may be taken, or the fee paid, on the next succeeding secular or business day.”

        1. No absolutely not. The copendency language of 35 USC § 120 is quite clear. No way could you put off the filing of a continuation or a divisional to a date that is after the issue date.

  1. David Boundy is the expert on this topic, not me, but does the Director clearly have the authority to declare the closure a Federal holiday?

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