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How Is the Prolonged Shutdown Impacting Your IP?

Josh Conley \ January 21, 2019

We are drudging into week 5 of the unprecedented government shutdown. The shutdown caused a variety of issues across the country, including national park closures and TSA crippling under the financial constraints placed on employees. But what does the shutdown mean for your intellectual property?

In a previous post, we addressed how the USPTO will keep a skeleton crew available to ensure that their filing systems stay running. This isn’t the only consideration to be aware of. When the USPTO idles down, it could mean that there are not going to be examiners to look over filings and keep the application process moving. The same goes for most every other aspect of the USPTO.

This will occur even though the Patent Office will continue to take fees from customers. Those fees, however, cannot be used because Congress has not appropriated them for use.

How this will all play out is unclear at this point. Our recommendation is that you expect some level of delay caused by examiners being furloughed. Once the government opens back up, there is also likely to be a fair amount of backlog that will need to be worked through as well.

The possibility of delay, however, shouldn’t stop you from taking action on your invention. Patent law is still based on the first inventor to file. Waiting until the USPTO is firing on all cylinders could mean losing the possibility of obtaining patent protection.

If an application has left the USPTO and is being evaluated before the Federal Circuit on appeal, things are still moving forward, even if the government isn’t ready for it.

The Federal Circuit last week denied a request from the government to stay oral arguments on cases. In the motion, the Department of Justice requested holding off hearings until the Department is fully functional. As a result, oral arguments continue to be scheduled for February 7.

As the shutdown continues, we’ll be keeping a close eye on how your patent and trademark applications are being affected at the USPTO.

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