USPTO to Remain Open in spite of Government Shutdown

By Gene Quinn
January 19, 2018

According to The Hill, the U.S. federal government is on the brink of a shutdown with seemingly little hope in sight for a resolution. If a last minute deal is not struck the government will shutdown at midnight tonight. Politico reported earlier this morning that federal agencies are bracing for the shutdown, dusting off contingency plans. Regardless of any government shutdown, the United States Patent and Trademark Office (USPTO) will continue normal operations.

Unlike other agencies, the USPTO has access to fees collected and will be able to continue normal operations for at least a few weeks, according to Commerce Secretary Wilbur Ross.

An e-mail sent by Ross to USPTO employees early this afternoon was obtained by IPWatchdog, and is reproduced below. Another e-mail sent by Acting USPTO Director Joe Matal sent late this afternoon is also reproduced below.

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From: USPTO Broadcast
Sent: Friday, January 19, 2018 12:33 PM
Subject: Appropriations Status Update

As many of you are aware, annual funding for the government expires on January 19th. The Administration does not believe it is necessary for a lapse in funding to occur and looks forward to working with the Congress to finalize appropriations for this year.

However, prudent management requires that we be prepared for all contingencies, including the possibility that a lapse could occur. A lapse would mean that a number of government activities would cease due to a lack of appropriated funding and that a number of employees would be temporarily furloughed. To prepare for this possibility, we are working to update our contingency plans for executing an orderly shutdown of activities that would be affected by a lapse in appropriations.

Should such a lapse occur, the USPTO would still have access to prior year fee collections, which enables the agency to continue normal operations for a few weeks. USPTO employees should report to work as normal until and unless you receive notice otherwise. We are working with your Office of General Counsel and Chief Financial Officer to update our contingency plans should the USPTO need to execute an orderly shutdown of activities after that point.

Thank you for your hard work, dedication, and patience through this process, and for all that you do for the Department of Commerce and the American people.

Sincerely,
Wilbur L. Ross
Secretary of Commerce

* * * * * * * * * * * * * * * *

From: USPTO Broadcast
Sent: Friday, January 19, 2018 4:21 PM
To: AllUSPTOEmployees
Subject: USPTO’s Operating Status

Dear Colleagues,

As you learned from Secretary Ross’s announcement earlier today, the USPTO will remain open and running as normal if the federal government shuts down tonight. For tomorrow, and for the near future, it will be business as usual within the USPTO.

Because the USPTO maintains sufficient carryover funding from prior fiscal years, our agency has the ability to stay open for business for a few weeks using these available reserves. During that time we would continue to conduct our duties and serve our nation by processing the patent and trademark applications that drive our country’s innovative economy. Should we exhaust these funds before a government shutdown comes to an end, the USPTO would have to shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions.

We continue to assess our fee collections compared to our operating requirements to determine how long we should be able to operate during a government shutdown; we will update you as more definitive information becomes available.

I realize you likely have more questions. As new information becomes available, we will inform you promptly and thoroughly. Thank you for your hard work and the continuing dedication you demonstrate to the American people.

Sincerely,

Joe Matal
Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO

 

UPDATED: 4:49pm to include the e-mail from Acting USPTO Director Joe Matal.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 8 Comments comments.

  1. angry dude January 19, 2018 3:24 pm

    r u kidding us ?

    wtf cares ?

  2. Anon January 19, 2018 3:34 pm

    angry,

    Please stop being a T00l of the Efficient Infringer crowd.

    Thank you.

  3. patent leather January 19, 2018 10:55 pm

    @angry dude — “wtf cares ?”

    I sure as hell care. what if the shutdown lasts longer than the USPTO has resources to self-fund? and what if the EFS system goes down and we have applications with deadlines to file? if the Post Office is closed due to the shutdown, then we can’t utilize a certificate of mailing. This could really turn into a disaster.

  4. Mark Nowotarski January 20, 2018 9:05 am

    As I understand it, the USPTO cannot access fees collected until there is a first office action on the merits for an application. With a three year backlog, shouldn’t the Office have three years of funding available?

  5. Mark Nowotarski January 20, 2018 9:16 am

    patent leather@3

    The post office will remain open. So if worse comes to worse, we can all go old school and mail correspondence by express mail. In that case the date the mailing is deposited at the post office is the date it is “received” at the USPTO. https://www.npr.org/2018/01/19/578985305/open-or-closed-heres-what-happens-in-a-partial-government-shutdown

  6. Anon January 20, 2018 10:39 am

    shouldn’t the Office have three years of funding available?

    No.

    Unfortunately (or not), the funds are not earmarked specifically and uniquely from one innovator’s payment to that same innovator’s examination effort. The funds are pooled upon payment. Further, the budget cycle is also divorced from the particular events of the workload and that budget IS annualized.

  7. patent leather January 20, 2018 1:23 pm

    @mark Thanks, I wasn’t aware the Post Office will remain open during a shutdown. That’s a relief. While the USPTO claims they will still maintain their electronic systems during an extended shutdown, we all know that what the USPTO says and does are two different things.

  8. J_Examiner February 6, 2018 2:37 pm

    @patent leather, the USPTO remained open and accepting applications during the entirety of the much longer prior shutdown. There’s no reason to think this one or any future potential ones (March 5…) will be any different.