Two full days of government shutdown ended with no resolution in sight for ending the budget impasse. The United States Patent and Trademark Office (USPTO) will continue normal operations using prior year reserve fee collection. USPTO has estimated that it will continue operating as usual for approximately four weeks, and will continue assessing how long it can continue its operations based on its fee collections. As of FY2012, the USPTO collected nearly $2.4 billion dollars in fees. A Patent and Trademark Reserve fund was established under a section of the America Invents Act that went into effect in October 2011 to deposit fee collected by the USPTO in excess of the amount appropriated for a fiscal year.

Several lawmakers have predicted that if the political stalemate is not resolved by the end of the week, the shutdown will continue at least until October 17 and fold into itself a debate about raising the debt-ceiling further delaying any resolution to restore government operations. In the event that the government shutdown continues after the USPTO has exhausted its reserve funds, the orderly shutdown plan for the USPTO reveals that contested patent and trademark proceedings will proceed on a preset schedule independent of the USPTO shutdown. The Electronic Filing System (EFS), receipt of incoming mail to the USPTO, and correspondence with international IP agencies will continue to be available, and 106 of the agency’s 11,789 employees will be excepted in the event of a shutdown to maintain services essential for preserving patent and trademark rights.

As of October 3, 2013, the U.S. Copyright Office and the International Trade Commission (ITC) has shut down. The ITC has halted its investigative activities until further notice despite its designation as a quasi-judicial entity. Shortly before the government shutdown, the ITC filed acontingent motion with the United States Court of Appeals for the Federal Circuit (CAFC) requesting a postponement of an appellate hearing scheduled for October 11 suggesting a possibility of the on-going shutdown extending until or beyond mid-October. The CAFC continues normal operation as judicial services are deemed “essential” during the government shutdown, as are all Federal Courts.

What the Shutdown Means for Inventors and Patent Holders

No information is readily available on how the last government shutdown—lasting 21 days between December 1995 and January 1996—impacted USPTO operations. This time, however, with continued availability of EFS and essential services to protect patent and trademark rights, inventors and companies can remain hopeful that any disruptions due to an extended government shutdown will minimally impact filing new U.S. and foreign applications. The most significant disruption may well be the delay in examination of pending patent and trademark applications.