Yesterday I published an article about the catastrophic failure of the USPTO electronic information and filing systems, reportedly caused by a massive power outage that only affected the United States Patent and Trademark Office. While some have raised legitimate questions about how it is possible that such a massive failure could occur only in one single location in Alexandria, Virginia, answers have been few and far between. What is clear is that the Office has indicated that all systems are operational again, but for unidentified reasons will need to be taken offline at unspecified times and without warning in order to truly remedy the problem. Whatever the problem is that continues to linger.
Virtually all patent and trademark applications are filed electronically, and law firms overwhelmingly file all communications with the USPTO via electronic systems. When electronic systems are down it presents a major burden on the industry, which is no doubt why USPTO Director Michelle Lee decided to treat December 22-24, 2015, at federal holidays within the District of Columbia, which would mean that correspondence and filings due on those days could timely be filed the next day the USPTO is open for business. The USPTO announcement, in pertinent part, read as follows:
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” under 35 U.S.C. § 21 and 37 C.F.R. §§ 1.6, 1.7, 1.9, 2.2(d), 2.195, and 2.196. Any action or fee due on these days will be considered as timely for the purposes of, e.g., 15 U.S.C. §§ 1051(b), 1058, 1059, 1062(b), 1063, 1064, and 1126(d), or 35 U.S.C. §§ 119, 120, 133, and 151, if the action is taken, or the fee paid, on the next succeeding business day on which the USPTO is open (37 C.F.R. §§ 1.7(a) and 2.196). A subsequent notice is anticipated to be issued as needed if the USPTO’s systems are not fully operational by Monday, December 28, 2015.
A question has surfaced about whether the Director has the authority to declare a federal holiday, some commentators saying that no such authority exists, which is probably correct. I cannot find any authority for the Director or the USPTO to declare or create a federal holiday.
I knew the Director of the USPTO has the authority to functionally provide relief equivalent to the relief provided by Director Lee, so I did not dig into that aspect of the USPTO announcement. Nevertheless, declaring a federal holiday seems like it was not technically the right thing to do, although functionally it may have been the best way to explain the decision to anxious patent practitioners quickly, particularly given how the USPTO had been rather slow to respond and not particularly forthcoming with information.
In retrospect, the proper thing for Director Lee to have done would have been to declare an emergency under the powers vested in her by 35 USC 21(a). Under §21(a) the Director of the USPTO can declare that a paper was filed on a day that it would have been filed but for a disruption in mail service or emergency. The net effect is that the filing is treated the same as under the Saturday, Sunday or Federal holiday rule.
35 U.S.C. 21(a) says:
The Director may by rule prescribe that any paper or fee required to be filed in the Patent and Trademark Office will be considered filed in the Office on the date on which it was deposited with the United States Postal Service or would have been deposited with the United States Postal Service but for postal service interruptions or emergencies designated by the Director.
Generally this rule has been used by the Office to extend time when there has been a natural disaster that has made filing by mail impossible. Think earthquakes or hurricanes where Post Offices in certain areas were destroyed. Generally the rule has been applied only to certain affected zip codes.
Unfortunately, it seems that Director Lee may have relied on some unspecified power under 35 U.S.C. 21(b), which says:
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.
It would be wise for the Patent Office to issue a clarification on this matter, explaining that Director Lee declared an emergency under §21(a) of Title 35 and did not attempt to create a new federal holiday in honor of a catastrophic power outage.
 It is true that MPEP 511 and the 37 CFR 1.10 seems to be written with an eye toward the emergency being U.S. Postal Service related. In my opinion the statute could easily be interpreted to give the Director the authority to identify a different type of emergency, and should have been utilized in this situation if forgiveness of missed deadlines was the goal.