The U.S. Patent Office came under fire recently due to having its servers down between August 15th through August 23rd. In an officially released statement, Andrei Iancu, Director of the U.S. Patent Office stated that the servers and electronic filing were down because they needed to conduct emergency maintenance on the technology infrastructure. Notably, the electronic filing systems for trademarks were not affected.  However, the patent system, because the web portals that accept electronic filing of patents and provide status updates on applications were all down, the consequences in terms of filing and maintaining patents became costly in both monetary costs as well as maintenance costs. The higher cost being due to the need for filing in paper which requires payment of higher fees for not using the electronic filing system.

As maintenance relates specifically to the U.S. Patent Office’s PALM database, which controls the Electronic Filing System, Patent Review Process System, and Patent Application Information Retrieval System, clients and attorneys alike were unable to follow the progress of patent filings as they ordinarily would.

While the U.S. Patent Office was not able to give a specific date for when servers could be expected to come back online, the system became operational on Thursday, August 23rd.  That was eight days of the system down. System outages have occurred in the past.  The most recent large-scale interruption occurred in December 2015 when the servers were down for four days, prompting some lawyers to file lawsuits due to missed deadlines or lost filing dates.

U.S. Code section 21(a) of 35 USC specifically states that the Director has the ability to postpone filing deadlines during emergencies, but the Director clearly stated that he had no intent on extending filing deadlines because of the existence of alternative filing methods in this circumstance.

While the USPTO encouraged patent filers to send in applications by priority mail instead of electronic filing, those filers had to pay higher filing fees. The U.S. Patent Office has higher prices for processing of non-electronic filings in some circumstances, to encourage the use of the e-filing systems that allow for convenience and faster processing. However, those 8 days of e-filing being down, gave some filers no choice but to pay the higher fees. For instance, an international patent application filed by mail would become subject to an additional cost of $400 due to opt-out of electronic filing.  If the same application were to be filed electronically, the cost would be almost half of that at $240.

The good news is the USPTO issued a statement indicating the Director will prescribe a procedure to allow those affected with higher filing fees due to paper filings to request refunds for the excess amounts. However, that process has not yet been disclosed.

About the firm:

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm. We offer comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the IP firm and its IP attorneys may be found at www.klemchuk.com.

Klemchuk LLP also hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.