As reported by numerous media outlets (see "Partial government shutdown likely to continue until after Christmas"), the U.S. Senate adjourned this afternoon without coming to an agreement on a continuing resolution to fund the United States Government. The government shutdown is the third shutdown of the federal government this year. While the shutdown could end as soon as Monday, when the Senate has a pro forma session scheduled, the shutdown could continue past the next actual session of the Senate on Thursday, December 27. The shutdown is the result of a debate over $5.7 billion dollars in funding for a border wall.
Regardless of when the shutdown ends, however, the U.S. Patent and Trademark Office has indicated in a short notice posted on its website that the Office will remain "open for business as normal" -- at least during the first "few weeks" of the shutdown (were the shutdown to last that long). The USPTO is able to stay open because of its "access to prior-year fee collections."
The entire notice is reproduced below:
USPTO operating status during government shutdown
In the event that parts of the federal government experience a lapse of appropriated funding, the USPTO remains open for business as normal. This is possible because the agency has access to prior-year fee collections, which enables the USPTO to continue normal operations for a few weeks. Should the USPTO exhaust these funds before a partial government shutdown comes to an end, the agency would have to shut down at that time, although a small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions.
Further information regarding any adjustments to the USPTO’s operating status will be posted on the USPTO website and delivered to the news media.
We will monitor and report on the USPTO's operating status as the government shutdown continues.
With this shutdown once again focusing the patent community's attention on the USPTO's operating status, experienced practitioners have probably been reminding their less tenured colleagues that the USPTO will be open on Monday, December 24. Ordinarily, that would be true, as the USPTO is normally closed only on federal holidays, which includes Christmas Day, but not Christmas Eve.
This year, however, the USPTO will also be closed on December 24 because of the official closing of federal government offices in Washington, DC on December 24. The Christmas Eve closing is the result of an executive order issued by President Trump on Tuesday, in which the President ordered "[a]ll executive departments and agencies of the Federal Government . . . closed and their employees excused from duty on Monday, December 24, 2018, the day before Christmas Day." The President also indicated in the order that "[t]he heads of executive departments and agencies may determine that certain offices and installations of their organizations, or parts thereof, must remain open and that certain employees must report for duty on December 24, 2018, for reasons of national security, defense, or other public need."
On Friday, the USPTO issued a notice stating that:
In view of the official closing of the Federal Government offices in the Washington, D.C. metropolitan area, including the United States Patent and Trademark Office (USPTO), on Monday, December 24, 2018, the USPTO will consider Monday, December 24, 2018, 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.
Because Christmas Day is already a federal holiday, the result of the USPTO's notice is that:
[A]ny action or fee due on Monday, December 24, 2018, or Tuesday, December 25, 2018, will be deemed as timely for the purposes of, e.g., 15 U.S.C. §§ 1051(d), 1058, 1059, 1062(b), 1063, 1064, 1126(d), and 1141k, 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, that is, Wednesday, December 26, 2018 (37 C.F.R. §§ 1.7(a) and 2.196), no later than 11:59 pm EST.
Thus, applicants and practitioners can -- for this year at least -- wait until December 26 to take actions that would otherwise be due on December 24.
