USPTO imposes a $400 penalty on those who paper-file a patent application instead of e-filing it. The policy reason is, of course, to make people e-file. But USPTO’s e-filing system had a total crash (blog post) on Wednesday, May 14, that made it impossible for USPTO customers to e-file their patent applications. This forced customers to paper-file (for example by going to the Post Office).
The right thing, of course, would be for USPTO to waive the $400 penalty for filings carried out on May 14. But no …
I faxed a letter to Acting Director Lee on May 17, asking her to please direct OPAP (the Office of Patent Application Processing) not to impose the $400 penalty on the filers who filed non-electronically on May 14. Two and a half weeks have passed and I have not heard anything back from Acting Director Lee in response to the May 17 fax. That is a bit of a disappointment.
Today (June 4) we received a Notice to File Missing Parts in the patent application that we filed on May 14. (We filed it by taking it to the Post Office under Rule 10.) The Notice says that everything we filed was just fine, except that to avoid abandonment we will need to pay a $400 penalty for doing a “non-electronic filing”.
I phoned up Acting Director Lee’s office today (June 4) to see when I might hear back from her in response to my fax. Nobody was able to say when or if I would ever hear back. The staffer handling the call offered to pass me along to the office of the Commissioner for Patents (Peggy Focarino). Reaching a staffer in the Commissioner’s office, I explained why I was calling, and the staffer asked if I was calling about a particular patent application. I said no, I was calling to suggest that USPTO do the right thing for everyone who was denied the use of the e-filing system on May 14. She pressed me for an application number and I gave her the number from the Notice to File Missing Requirements that we received today. She said she would get back to me, and later she called back to say that some (unnamed) manager in OPAP said I should pound sand and would have to pay the $400 regardless. Well, she said it more nicely than that, but that was the message.
By now we can see that USPTO is slowly creeping out from under the mountain of paper that resulted from customers having to paper-file things that they were unable to e-file on May 14. In coming days I imagine that more and more USPTO customers will receive Notices to File Missing Parts telling people that they must pay the $400 penalty because they failed to e-file their patent applications on May 14. I invite readers to share their thoughts about this (and about the content of my May 17 fax) by posting a comment below.