As we near a standoff in Congress on the budget, we write to remind clients about how a government shutdown would affect patent and trademark operations at the Patent and Trademark Office (PTO), copyright operations at the Copyright Office, and various court functions.
This information is current as of September 29, 2023 based on the information available, but the situation is fluid and will likely change, especially if the shutdown continues beyond a few days or weeks.
The U.S. Patent and Trademark Office (USPTO)
The PTO will remain open for the time being. Each fiscal year, the PTO reserves a portion of the amount that Congress makes available annually through appropriations as a designated operating reserve. The PTO maintains two distinct operating reserve balances: one for patent operations and one for trademark operations. At the end of Fiscal Year 2022 (September 30, 2022) the patent operating reserve had $775 million (2.8 months of operating expenses), and the trademark operating reserve had $208.7 million (5.5 months of operating expenses). Those operating reserves would be available to pay the PTO’s federal employees and contractors for a period of time during the shutdown.
When the PTO approaches the end of its reserves, it will need to decide whether to stop its examination activities and furlough patent and trademark examiners. During the last shutdown, the PTO maintained a small staff to receive new applications and any other examination, post-examination, post-issuance, and PTAB or TTAB filings; receive payments related to such filings; and maintain IT infrastructure, among other functions.
U.S. Copyright Office
The U.S. Copyright Office website, copyright.gov, will remain operational. The Library of Congress will close effective 12:01 am, Sunday, October 1, 2023.
U.S. Court of Appeals for Federal Circuit
The Federal Circuit announced that it will remain open for business, and it will be fully staffed to provide all judicial business functions until further notice. Electronic case filing will remain available through CM/ECF, and electronic filing deadlines will remain in effect.
Other Federal Courts
The Department of Justice has advised that the federal courts will be able to stay open for about two weeks following a shutdown. Almost all civil litigation, however, will likely be curtailed or postponed to conserve resources for criminal cases.
We will keep you informed of any developments.