Merry Christmas from the USPTO (and from us at Patently-O)

Most filings OK to delay to December 28.
The USPTO has issued the statement below:

A major power outage at USPTO headquarters occurred Wednesday, Dec. 22, resulting in damaged equipment that required the subsequent shutdown of many of our online and IT systems. This includes our filing, searching, and payment systems, as well as the systems our examiners across the country use. Additionally we are unable to receive faxed documents. We are working diligently to assess the operational impact on all our systems and to determine how soon they can be safely brought back into service in the coming days. We understand how critical these systems are for our customers, and our teams will continue to work around the clock to restore them as quickly as possible, though we are currently estimating that these systems will be impacted at least through the Christmas holiday on Friday, December 25.

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 the complete official notice in the text below.

You can monitor further status updates on the USPTO’s System Status page on our website (, as well as on our Facebook ( and Twitter ( accounts.

Thank you for your patience as we work to restore full service as soon as possible.

Since December 25 is already a federal holiday, the filing reprieve is actually pushed back to Monday, December 28.

41 thoughts on “Merry Christmas from the USPTO (and from us at Patently-O)

  1. 12

    LOL, I never subscribe to these memes, like smilie face and email shorts, but being one of the last paper transactors in this crazy biz, I can’t well wonder if a “paper practice” is cheaper than an “e-file practice?” The “certificate of mail” is a god-send to us relics.

    1. 11.1

      I second that! Thanks for having an intelligent forum for such an important topic. sfreptile

  2. 10

    To all:

    It appears that the USPTO’s Private PAIR and EFS systems are now up, at least enough to retrieve documents from Private PAIR and to file applications through the EFS system.

    With respect to filing applications through the EFS system, be very careful. It appears you won’t be able to save a proper pdf file of fee-info or the electronic filing receipt. Instead, I recommend printing each of these documents from the screen itself to save a record of such.

    You may also have to pdf print (e.g., using PaperPort) or scan your filled in ADS form if you use the latest version (AIA 14, 11-15 version). When I tried to upload the filled ADS form using this latest version, I got both a Warning and Error message. You still get a Warning message if you pdf print or scan the filled ADS form, but at least you can complete the EFS filing.

    Hope that helps.

  3. 9

    Waiving deadlines from the graveyard
    for some healthy IP
    whistle a happy tune,
    directed to an abstract idea,
    performed on a generic computer,
    over a holiday weekend.

  4. 8

    George D. Morgan, Esq.: It’s a major event that should have been covered by this blog sooner. IMO, patently-o has an anti-practice, anti-patent bias.


    Hmm, let’s take a wild guess …

    Mr. Morgan … has over a decade experience as a computer programmer …

    Ah yes. Nobody could have predicted.

    1. 8.1

      Watch it MM,
      I’ve got over a decade experience as a programmer (and architect, and senior consultant, DBA, and a few other things). Just because someone has experience as a programmer doesn’t mean their cranial unit is up their posterior unit*.

      *-I will admit, IT does seem to have more than it’s fair share, but most of those are in upper or middle management…

      1. 8.1.1

        Just because someone has experience as a programmer doesn’t mean their cranial unit is up their posterior unit*.

        No doubt, and I didn’t mean to suggest that.

    2. 8.3

      Not even a holiday can deter MM from gratuitous ad hominem attacks. Haters gonna hate, even on Christmas Eve.

  5. 7

    I agree with those questioning the PTO’s authority to do this, but at the same time it would be absurdly hypocritical for the courts to call them on it in light of the undue deference they’ve given to implausible agency interpretations.

  6. 6

    This combines my remarks and “Suzannah” from the Oppedahl blog.

    Chapter 1—December 2015

    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. The Office of Personnel Management ( has authority to close the Federal Government inside the beltway for, e.g., inclement weather.

    The PTO has the authority to waive regulations (and thus can allow extension fees to be tolled for two days), but if there is any valid source of authority to define “holiday” for purposes of statute, it isn’t identified in the notice.

    35 U.S.C. § 21(a), the Certificate of Mailing statute, gives the Director the authority to “consider” a paper to be timely filed if it is timely mailed, but § 21(b), the holidays statute, has no such grant of authority.

    The PTO’s precedent is inconsistent with today’s action. Suzannah checked what the USPTO did for the JP tsunami. The USPTO said it cannot grant waivers or extension of dates or requirements set by statute, e.g., 1 year bar dates and national phase entries. See last paragraph of link to

    The President hasn’t declared December 22-24th a Federal Holiday based on link to OPM hasn’t closed the USPTO. In fact, Suzannah called the USPTO today to see if they are open, and they are (but will close early per Obama’s executive action).

    USPTO has general powers provided by Section 2, but it clearly states that the USPTO “(2) may establish regulations, not inconsistent with law, which—“. Note “regulations” AND “not inconsistent with law”. Bar dates are statutory/law. Seems USPTO can’t validly declare a Federal Holiday when it is inconsistent with laws, aka bar dates set by statute and laws granting such powers to declare Federal Holidays to Congress and the President (by executive action) and whatever laws give OPM the power to close the Federal Government.

    Chapter 2—when it comes time to get any value out of the patent

    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 decision will likely read “You knew the statute. ‘Considered Schmiddered’ The PTO is not permitted to act as an expounder of law. You knew you had a statutory duty, and the Post Office was open those days.” Very much like The Medicines Company case a couple years ago—lawyers are responsible for knowing the statute, and face malpractice verdicts in the tens of millions when they rely on silly, unfounded effluent put out by agencies with ill-informed lawyers.

    Suzannah suggests that the USPTO might have done better by saying it is officially closed December 22-24th. See MPEP 510:

    37 CFR 1.9(h) provides that the definition of “Federal holiday within the District of Columbia” includes an official closing of the Office. When the entire USPTO is officially closed for business for an entire day, for reasons due to adverse weather or other causes, the Office will consider each such day a “Federal holiday within the District of Columbia” under 35 U.S.C. 21. …

    Still, this is CFR, aka regulations, not statute. It’s not clear that Rule 1.9(h) is issued within statutory authority, but because it’s a formal regulation, it’s at least got a prayer of being recognized as a valid interpretation of statute.

    Chapter 3—Recommendation.

    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.

    If you take advantage of this for a statutory deadline item, include a copy of the notice in the submission. It’s going to be litigated.


          Not today or ever. I specifically file all matters due the last two weeks of December early. I’m not a fan of chaos during holidays.

          Have a merry Christmas. Hopefully 2016 brings some sanity to patent law.


            “Fan of chaos during holidays,” good quotable. I retired from litigation because of such deliberately caused “chaos.”

    1. 6.3

      I’m surprised your recommendation wasn’t to mail your submissions today the old fashioned way, instead of waiting until Monday.

      1. 6.3.1

        Sorry, I meant to include that. OF COURSE the recommendation is “if you have a statutory deadline, file it today, using Fisrt Class or Express Mail as necessary.

    2. 6.4

      David, nice analysis, but recall the fact pattern of the Aristocrat case a few years ago: Australian company missed the PCT national phase deadline in the USA by one day. US counsel went ahead and filed anyway, with a petition to revive for unintentional abandonment. PTO took the money and said, sure, you can have your application. Patent eventually issued. Patentee sued for infringement, defense argued that PTO improperly revived b/c in a case like this one, the statute only allows for revival for unavoidable abandonment. [That provision, as you know, was later relaxed by the AIA.] CAFC said, we don’t care, that’s not a defense you can raise at trial, if we allow defendants to second-guess the PTO’s judgments on administrative matters, we’ll be flooded with these kinds of claims.

      I could foresee a district court perhaps buying into the argument that from a technical legal perspective, the PTO went about handling the present situation in slightly the wrong way, and therefore some paper in the file history wasn’t timely filed. But I don’t see the CAFC adhering to that. The vast majority of filings are done electronically, the PTO FUBARed in the design of its system and as a result was effectively closed, the PTO can say deadlines are extended or that a paper is timely filed, and who cares about the language the PTO used to achieve that? (Nevermind the fact that this same CAFC said that it makes a great deal of difference if an employee says “I promise to assign in the future” versus “I hereby assign all future inventions”…; inventors can be held to a different standard than the PTO itself…)

      And although CAFC precedent doesn’t preclude such an argument from being raised in a PGR, do you really think the PTO is going invalidate a patent it just granted, on the grounds that at some point in the prosecution it should never have accepted some paper in the file?

      What I wouldn’t mess around with are Paris Convention deadlines. If you want to get a new PCT application filed on time, with a proper Paris Convention priority claim that can’t be contested anywhere, you should probably file at the IB or some other RO that’s open (China, for instance), rather than go beyond the one year period and wait to file at the USPTO whenever it reopens for business.

      1. 6.4.1

        As you say, it’s “an argument.” To miss an initial filing date, I don’t think it’s a winner, but I agree, it’s “an argument.”

        Do you want your client’s interest and a malpractice case against you to turn on “an argument” that even though the Post Offices are not closed, they are out of the picture?

        So much of what we do in prosecution is directed to taking defendants’ arguments off the table–especially in today’s environment, the only valuable patent is a clean patent. Do you really want to hand a licensee a position against which you have “an argument,” meanwhile the price of the license goes way way way down?


          In general, when a statutory bar is coming up the best practice is to set a deadline for filing ahead of that bar at least 24 hours but preferably 48 or 72 hours to account for these kinds of contingencies. The client should also be informed well in advance (months in advance, every month) that any materials necessary for the filing must be delivered to the attorney well in advance of that earlier deadline so the claims can be finalized and approved of by everyone who needs to get their finger in the pie.

          It’s not the patent attorney’s fault when clients wait until the last minute to provide feedback or materials. What would a caterer tell you if five hours before the dinner (scheduled a month ago) you needed to double the amount of food and make half of it vegan and provide a tasting beforehand? They’d ask you if it was April Fools. But a lot of clients out there love to brag about how they “own” their attorneys.

          Put a bunch of money in the wallet of a certain kind of person and you often end up with deranged entitlement syndrome. It gets worse around the holidays.

    3. 6.5

      Thanks David, excellent analysis.

      One comment – I will guess that if the PTO “deeming” does not hold up, 9 out of 10 of affected luckless applicants are or have hired as their counsel an inveterate procrastinator. Primarily a litigator disease, but some prosecutors suffer from it as well, and as far as I know, there does not seem to be a cure.

  7. 5

    I didn’t think the USPTO has the authority to declare such a holiday. I checked Oppedahl’s blog and sure enough in the comments this issue is well discussed:

    link to

    DO NOT rely on the “holiday” status unless you absolutely have to. Christmas only comes once a year

  8. 4

    There is something oddly symbolic about the website for the agency that is responsible for the deconstruction of patent protection in the US going dark on Christmas.

  9. 3

    December 28 filings get December 22 effective filing date.

    A minor quibble, perhaps, but I don’t think that’s right. There’s a difference between extending the last day for taking an action and granting a retroactive filing date.

  10. 1

    This was announced on Carl Oppedahl’s listserv and website like at least 24 hours ago, and has been discussed since Tuesday night when the problems started. It was mentioned on PatentDocs like 15 hours ago. Where you been, Dennis?

    1. 1.1

      Edited version:

      Dennis – Thank you for your continuing efforts to keep we members of the Patent Bar informed of events that affect our lives and livelihood, be they court cases, filing trends, or announcements from the USPTO.

    2. 1.2

      The announcement about Federal Holidays was announced by the PTO at 5:55 p.m. ET yesterday. I doubt Oppedehl’s listerv was predicting the future.

      1. 1.2.1

        The PTO system was down since Tuesday afternoon. It’s a major event that should have been covered by this blog sooner. IMO, patently-o has an anti-practice, anti-patent bias.


          I’m not willing to go there, but I will make note that Dennis is an academician and probably has not idea when PTO systems are up or down.


            I thought Dennis has his reg number and practiced patent prosecution before turning to academia?

            I mean COME ON – he performs a public service, how can you be disgruntled by free distribution of information?

Comments are closed.