Ever since anthrax was mailed to several Capitol Hill Offices in the fall of 2001 the United States Patent and Trademark Office (USPTO) set out to become a paperless agency. On the trademark side of the building a paperless reality was far easier to achieve and has been the reality for a long time. After years of effort, today the patent side of the Office relies on the Electronic Filing System (EFS) for virtually all submissions to the USPTO, including new application filings and back and forth communications between patent examiners and patent practitioners. Extraordinarily few filings are made in paper form, few probably even remember how to do a paper filing. This means the unavailability of electronic information and filing systems at the USPTO is a big deal.
As many in the intellectual property community no doubt already know, on December 22, 2015, at approximately 7:00 pm, the USPTO experienced a catastrophic failure of electronic information systems due to what is being called a major power outage at the Office’s headquarters in Alexandria, Virginia. Initially it seemed that the USPTO was slow to provide information. In fact, according to some practitioners, the blog page dedicated to notify the industry about electronic filing issues was for a time displaying a 404 error message. When information was provided the Office posted only rather nebulous statements on the agency website.
Although I have no reason to question the veracity of the USPTO claim that a power outage caused the problems experienced by the electronic systems, my information is limited to that provided to the public at large. I reached out to the USPTO for comment on Wednesday, December 23, 2015, and was directed only to the updates that were periodically, and rather slowly, being posted to the website.
Could a power outage be responsible for electronic filing systems and information systems being down for nearly a week? Yes, it is certainly possible, but if you read between the lines it seems to me that the USPTO does not definitively know what happened or why.
At approximately 7:00pm on December 24, 2015, I was e-mailed a statement from Patrick Ross, Acting Chief Communications Officer, which was also posted to the USPTO website. In part it reads:
Power that comes into the USPTO’s main building feeds two power filtration systems that provide steady, “filtered” power so systems don’t suffer from damaging surges or drops in power supply. A malfunction in the power supply lines feeding these two systems caused significant damage to both systems. This is what we believe caused our systems to go down on Tuesday night.
Because of their size, these large and highly complex power filtration systems cannot be easily replaced. We are working with service providers to obtain a source of uninterrupted conditioned power to the data center as soon as possible.
As far as I can tell there is no updated explanation, or more detailed explanation, as to what caused this massive power outage. Thus, we are presently left with a belief that it was caused by a malfunction in power supply lines that caused two different filtration systems to suffer some kind of catastrophic failure. But what caused the malfunction?
Given the importance of the USPTO electronic systems why didn’t the USPTO have real, robust, and redundant contingency plans? Why did they choose not to answer questions? The one question I specifically posed was whether the Office could confirm that no information or files were lost. I have not yet received an answer to that question.
The USPTO electronic systems have been antiquated for years, difficult to use in any real world sense of what is acceptable in a 21st century e-commerce digital age. I have often said in private conversation that if Amazon.com operated with all the peculiarity of the electronic filing system (EFS), for example, the first thing the name “Amazon” would conjure up would be a river or jungle in South America, not the most dominant e-commerce company in the world. Sure, for those who use EFS everyday you become accustom to the quirks, the problems, and even the errors. But it shouldn’t be so difficult to send a file across the Internet to an agency that is supposed to be the hub of all things innovation.
The USPTO computer systems are widely known to be extremely fragile. For example, under the Kappos Administration Google accepted a no-fee contract to scrape data saved only in image files from the USPTO servers, converting the data to usable and readable text files. So fragile was the USPTO system that Google could only scrape data for several hours in the middle of the night due to concerns that additional traffic would cripple the system. Even further, each night Google would encounter numerous errors.
It is difficult to believe, but the USPTO computer systems for a variety of reasons have a long history of being woefully inadequate. EFS has no real back up system, which is a enormous problem when you have statutory deadlines and the EFS system goes down, and down it goes frequently. The USPTO will no doubt quibble with that previous statement, but based on the USPTO’s on answers to frequently asked questions, EFS Contingency is a contingency only in a Monty Python sort of way. According to the USPTO, filings cannot be made when EFS-Web is down for maintenance because “EFS-Web and EFS-Web Contingency share a common backend system. During scheduled maintenance activities, both EFS-Web and EFS-Web Contingency need to be brought offline to properly complete system maintenance.” That means the USPTO has a back up server that is guaranteed to go down when the main server goes down. To call that a contingency plan is insulting.
Over recent years the monumental task of updating and enhancing the computer systems has been undertaken. The Office has said that they have made exceptional strides in stabilizing their technology infrastructure, and the sad part is that they really have. Of course, when a power outage can cripple the Office for nearly an entire week a legitimate question needs to be raised about the integrity of the USPTO computer systems.
The good news is that the USPTO did declare that it 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. That means that any action or fee due on these days will be considered as timely 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).
EDITORIAL NOTE: Whether Director Lee has the authority to declare a federal holiday has come into question. The Director clearly can declare an emergency under § 21. For more on this please see The USPTO Director can legally extend filing deadlines for emergencies.
When the USPTO last updated its website on this catastrophic outage the Office reported that it would post another notice if the USPTO’s systems are not fully operational by Monday, December 28, 2015. As of the publication of this article no additional notice has been published, but the USPTO website continues to open with a warning notice that ends thanking the community for patience as the Office attempts to resume normal operations. Some operations are reportedly back on line, while others remain unavailable. Stay tuned.