Posts Tagged: "postal emergency"

The USPTO is in the process of publishing a notice designating the interruption in service of the United States Postal Service (USPS) in the areas affected by Hurricane Harvey in Texas and Louisiana, beginning on Friday, August 25, 2017, as a postal service interruption and emergency within the meaning of 35 U.S.C. § 21(a).

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. Here the defendants were served with the complaint on December 24, 2014, which means any IPR had to be filed on or before Thursday, December 24, 2015. The defendants filed their IPR petitions on Monday, December 28, 2015. The patent owner argues in a recently filed federal complaint that the IPR petitions would be considered untimely but for Director Lee declaring December 22-24, 2015, federal holidays due to the catastrophic failure of the USPTO’s electronic filing systems.

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. 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.