The Puget Patent Blog
USPTO Systems Back Online
Posted Tuesday, December 29, 2015.
The USPTO announced mid-day on Monday that the systems affected by the outage caused by the power failure on December 22 were back up and running. I have successfully accessed the systems for filing responses for clients, obtaining new actions and searching for previous patents/applications. While the USPTO says they may need to take systems off line again in the near future to perform more permanent repairs, they will be able to do so in a scheduled fashion with prior notification to its constituents.
At this point, the outage was attributed to an anomaly in power lines feeding power conditioning systems at the USPTO. The anomaly damaged the pair of power conditioning systems, leading to the power outage and subsequent damage to the systems.
The proximity of the outage to the federal Christmas holiday may have been a fortunate occurrence, albeit unlucky for the Information Technology employees and contractors at the patent office who lost their holiday time.
No further updates on the situation should be needed from here.
USPTO Systems Outage Update
Posted Monday, December 28, 2015.
Over the holiday weekend, the USPTO updated their status page to say that they had been working to get all of their systems online by Monday morning, December 28. As of this writing, there has been no announcement by the patent office that service is completely restored. However, I notice that systems for patent application status and searching appear to be up and running.
The patent office says that once the systems are back online, it is possible they will need to schedule outages over the next few days and weeks to perform additional maintenance.
Don't Find That 24-hr Post Office Yet (Update on USPTO Systems Outage)
Posted Thursday, December 24, 2015.
Yesterday I posted about a “major power outage” at the headquarters of the United States Patent and Trademark Office (USPTO). (Read the original post here.) As of this writing (Dec. 24, 10AM PT) the USPTO data systems are still inaccessible via the Internet. The outage includes systems for searching, filing and payment of fees.
The USPTO expects the outage to continue at least through Friday.
An issue relates to filing deadlines. For example, what happens if an applicant for a patent received an Office Action on September 23, 2015 having a three-month time period for a response? That would make the due date December 23. However, because of the systems outage, filing a timely response (assuming one waited until the last day) would be impossible.
In its earlier status posts, the patent office reminded us all that they also accept submissions by regular mail. Deadlines are considered met if an envelope containing a submission is postmarked no later than the due date, and provided the submission is accompanied by an affidavit of mailing. (USPS Priority Mail Express is another option.)
Before electronic filing became prevalent, many patent practitioners had the location of the closest 24-hr post office committed to memory. (For the Seattle area, it used to be in Tukwila, just north of Sea-Tac airport.) Once we all migrated to electronic filing, however, this process became a thing of the past.
It was looking like we needed to dust off those affidavits of mailing in response to the USPTO systems outage. Also of note is that certain discounts are only available if documents are filed electronically - submission by mail incurs a higher filing fee in some instances.
However, the USPTO has granted some relief by declaring all days between December 22, 2015 (the first day of the outage) and December 24 a holiday. December 25 is a holiday and the following two days (December 26-27) are a weekend. By doing so, the USPTO enables us to file everything that should have been filed from December 22-24 on Monday, December 28 (by which time the systems are anticipated to be operational again).
This relief should even hold for PCT applications, as PCT rules state that due dates are determined based on local Receiving Office days of operation. (See PCT Rule 80.5.) If a PCT deadline occurred on December 23 and a PCT filing was due that day, even though other Receiving Offices and the offices of WIPO are open on December 23, relief to file any documents at the USPTO through December 28 will be available.
Systems Outage at USPTO
Posted Wednesday, December 23, 2015.
On the evening of Tuesday, December 22, electronic access to a number of systems at the United States Patent and Trademark Office (USPTO) was interrupted. The following morning, the USPTO announced via various channels that they had experienced a “major power outage” at their headquarters.
The outage reportedly resulted in damage to a number of their online data systems, including electronic filing, searching and payment systems. Patent examiners are affected, although it is unclear exactly what job duties examiners can and can’t perform during the outage.
As of this writing (Weds Dec. 23, 11AM PT), the USPTO believes the downtime may extend “through the Christmas holiday.”
For those with deadlines to meet (expiration of the one-year deadline for filing a non-provisional application which claims priority from a provisional application, for example), the USPTO does accept submissions by USPS Priority Mail Express or by first class mail.
A ripple effect is being felt as third-party systems and websites which pull data in real-time from USPTO systems are unable to connect.
More information will be posted as it becomes available on the USPTO Systems Status and Availability webpage.
It Depends On What The Meaning Of "Is" Is. (No, Really, It Does)
Posted Sunday, December 13, 2015.
A former President providing grand jury testimony famously argued, “It depends on what the meaning of the word ‘is’ is.”
The meaning of the word “is” has now also been considered by the U.S. Court of Appeals for the Federal Circuit (“CAFC”). In a patent case involving Straight Path IP Group and Sipnet EU, a three-judge panel of the CAFC issued an opinion November 25, 2015. A takeaway from the opinion is that every single word chosen for use in a patent claim can have a significant consequence, even an innocuous-seeming two-letter word such as “is.”
We can turn to the world of portable devices using wireless communications for an illustration. A device like a cellular phone or a tablet computer, upon being powered up, will search for a wireless access point and register with it. For example, the cell phone may look for a nearby cellular tower. A tablet or laptop might look for a WiFi router (the cell tower or WiFi router being the access point – the point where the device first accesses the network before its network request is retransmitted to a destination).
Before the user of the device requires access to the network (i.e. makes a call or browses the Internet), that registration process occurs. A unique identifier for the device is recognized and stored by the access point during the registration. A table of devices currently registered with the access point is usually maintained. Upon registration, network communication may then ensue.
When viewing a WiFi router in its administration mode, a command to display the contents of the current registration table or a “network map” is often available so one can see a list of devices which have been through the registration process. But how long will a device stay “registered”? If a device goes to sleep (as battery-powered devices commonly do to conserve battery life), are they immediately “un-registered”? Not commonly – a “de-registration” by a WiFi router typically occurs after the device hasn’t connected with the router for some arbitrary period of time - typically hours, or days. This cuts down on network traffic that would be required if devices were un-registered and re-registered each time they entered a power-saving mode.
The scenario above is analogous to the technical environment at issue in Straight Path v. Sipnet. The patent claim included the text “program code for transmitting, to the server, a query as to whether the second process is connected to the computer network.” The foregoing claim text became of “central importance” in the patent case.
Thinking about our exemplary portable device scenario, if the portable device goes to sleep but its registration is maintained by the WiFi router, “is” the portable device connected to the computer network? Adopting that famous grand jury testimony, it depends on what the meaning of the word “is” is. When we say something happens if the portable device is connected to the network, does that mean that the portable device is actually powered-up and downloading content from the Internet?
Let’s say the user powered the portable device up (causing it to register with the access point), checked email and then set the device down to go do something else. After a few minutes the device would likely go to sleep, saving battery life. As discussed above, the access point retains the information about the portable device in its registration table. In that scenario, can we say that the device “is” connected to the network? From the perspective of the WiFi router, we might say yes because the router has no idea that the portable device went to sleep. But looking at it from the powered-down device side, how can we say that it “is” connected to the network if the device’s network connection is unpowered like the rest of the device?
Unfortunately for the patentee in this case, the word “is” was ambiguous enough that an opposing party could cast doubt on its meaning and throw the validity of the patent into question. The Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office heard the matter and canceled the claim. The CAFC has sent the case back to the PTAB to reconsider the claim with respect to the meaning of the word “is,” so future legal proceedings lie ahead for the parties while the matter is resolved.
To reiterate, every single word chosen for use in a patent claim can have a significant consequence, even an innocuous-seeming two-letter word such as “is.” What could have been done to avoid the litigation and make the patent less vulnerable/more valuable? For example, the drafter of the patent claim could have attempted to get it issued as “whether the second process is or was connected to the computer network.” Or, perhaps the claim should have read “whether the second process is registered to the computer network” instead of connected. As is evident from the subsequent litigation over the patent that did actually issue, the choice of “is” vs. some other term was incredibly significant in this case. And that’s just a single word of the 150 making up the patent claim.
In short, the manner in which patent claims are written and ultimately issued by the patent office “is” incredibly consequential for the ultimate value of a patent – and I say that with no dependency at all on what the meaning of the word “is” is.
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