On December 22, 2015, at approximately 7:00 pm, the United States Patent and Trademark Office (USPTO) experienced a catastrophic failure of electronic information systems due to a major power outage at the Office’s headquarters in Alexandria, Virginia. Power that comes into the USPTO main building feeds two power filtration systems that provide steady, filtered power to control against power surges. A malfunction in that power supply caused significant damage to both systems, which caused the failure of both the main and backup systems.
With all USPTO electronic systems down, USPTO Director Michelle Lee declared December 22-24, 2015, a federal holiday within the District of Columbia. 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.
According to the Patent Office, Director Lee seems to 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.
Of course, the Director of the USPTO does not have the authority to declare a federal holiday. Federal holidays are created only by Congress and signed into law by the President. Only 10 federal holidays have been created. See 5 U.S.C. 6103(a). Not even the President can declare a federal holiday, although by executive order the President can close an executive agency or give workers a half day, as is customarily done on Christmas Eve or if the day after Christmas falls on a Friday.
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. A catastrophic failure of transformers at the USPTO that brought down all electronic systems would seem to qualify as an emergency, particularly in 21st Century America where over 99% of all filings sent to the USPTO arrive via electronic filing. 
The net effect of Director Lee having declared an emergency, which she clearly has the power to do, is that any filing would have been treated the same as under the Saturday, Sunday or Federal holiday rule. I explained this all in an article on December 29, 2015, and urged the USPTO to clarify that Director Lee had not created a new federal holiday, but rather declared an emergency. The USPTO was made aware of the article, but no such clarifications were ever issued. The Patent Office was content with Director Lee declaring December 22-24, 2015 as federal holidays, which clearly she had no right to do.
It was only going to be a matter of time before Director Lee declaring a federal holiday without any statutory authority came back to haunt the USPTO. On August 12, 2016, Elm 3DS Innovations, LLC, sued Director Lee and the USPTO in the United States District Court for the Eastern District of Virginia arguing that they were aggrieved by Director Lee declaring a federal holiday without any authority to make such a declaration.
The problem created by Director Lee’s decision to declare a federal holiday relates to the tardy filing of an inter partes review (IPR).
Elm 3DS Innovations sued Micron Technology, Inc., Samsung Electronics Co., Ltd.; Samsung Semiconductor, Inc., and Sk Hynix Inc. (and various associated companies) in the U.S. District Court for the District of Delaware, alleging that they had infringed certain of Elm’s patents. The defendants were served with the complaint on December 24, 2014. Pursuant to 35 U.S.C. 315(b), this means any IPR had to be filed on or before Thursday, December 24, 2015, otherwise the petition would be time barred. The defendants filed their IPR petitions on Monday, December 28, 2015.
Elm 3DS Innovations argues in the complaint filed that the IPR petitions would be considered untimely but for Director Lee declaring December 22-24, 2015, federal holidays. Elm is, of course, correct.
Elm 3DS Innovations is asking the Eastern District of Virginia to declare that December 22-24, 2015, were not federal holidays and that Director Lee acted outside the scope of her statutory authority in declaring those days to be federal holidays. Furthermore, they are asking for a declaration that by accepting the IPR petition outside of the statutory deadline to file the petition Director Lee acted outside of her statutory powers. Elm is also looking for a declaration forbidding the USPTO from continuing to implement Director Lee’s declaration of December 22-24, 2015, as federal holidays.
Why Director Lee relied upon some unspecified power she clearly does not possess instead of a power she clearly does possess is a complete mystery. The law is enormously clear. Unless the Eastern District and ultimately the Federal Circuit decide to ignore the law, the outcome of this case is easy to predict. Director Lee will be found to have lacked the authority to declare a federal holiday and the IPR petitions filed on December 28, 2015 will be time barred.
 The USPTO Director does have the power pursuant to 35 U.S.C. 21(a) to declare emergencies. Both MPEP 511 and the 37 CFR 1.10 seem to be written with an eye toward the emergency being U.S. Postal Service related. The statute could easily be (and should 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.