The United States government is currently in a partial shutdown due to a lapse in appropriated funding for a portion of the federal government. The partial shutdown began on December 22, 2018, and is currently in its fifth week. Two government organizations affected by the shutdown are (i) the Department of Commerce, which includes the United States Patent and Trademark Office (USPTO), and (ii) the Judiciary, which includes the U.S. Court of Appeals for the Federal Circuit.
Despite the partial government shutdown, the USPTO is currently open for business as normal because the agency has access to prior-year fee collections. The USPTO website states that these funds enable it to continue normal operations “for a few weeks.” Likewise, the “United States Department of Commerce Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations” (updated December 22, 2018; hereinafter, “the Shutdown Plan”) states that the USPTO anticipates that it will have sufficient funds to continue operations for a “brief period,” during which all USPTO employees will be excepted under the Shutdown Plan. If these non-appropriated funds are exhausted before the partial government shutdown comes to an end, the USPTO would then execute the Shutdown Plan, which calls for the agency to retain only a small staff to perform functions such as receiving new applications and any other examination, post-examination, post-issuance, and PTAB or TTAB filings; receiving payments related to such filings; and maintaining IT infrastructure. Specifically, only 113 of the USPTO’s 12,593 employees (on-board as of November 18, 2018) would then be excepted under the Shutdown Plan, almost all of which fall under “exception category 5”—i.e., they are necessary to protect life or property.
As for the federal courts, the U.S. Courts website has published four announcements regarding operation of the Judiciary during the shutdown. The original statement at the beginning of the shutdown on December 22, 2018, estimated that the federal courts could remain open and continue operations for “approximately three weeks, through Jan. 11, 2019,” by using court fee balances and other funds not dependent on a new appropriation (i.e., “no-year” funds). An update published on January 7, 2019, stated that the Administrative Office of the U.S. Courts had revised its original estimate and set a goal of sustaining paid operations through January 18, 2019, by requesting that courts delay or defer non-mission critical expenses. Another update was published on January 16, 2019, and included a new estimate that federal courts can sustain funded operations through January 25, 2019. The additional week of funding was attributed to “aggressive efforts to reduce expenditures,” but the announcement warned that “at some point in the near future, existing funds will run out if new appropriated funds do not become available.” The most recent update was published on January 22, 2019, and the Administrative Office of the U.S. Courts now estimates that funded operations can be sustained through January 31, 2019, with the Judiciary continuing to explore ways to conserve funds so that it can sustain paid operations through February 1, 2019. However, this latest announcement declares that “[n]o further extensions beyond Feb. 1 will be possible.” The announcement notes that most of the measures used to achieve the extensions—i.e., deferring non-critical operating costs and utilizing court filing fees—are “temporary stopgaps,” and the Judiciary will face deferred payment obligations after the shutdown ends.
The U.S. Court of Appeals for the Federal Circuit—of particular interest to IP practitioners—has thus far operated as normal. On the eve of the government shutdown, the Federal Circuit issued a Notice indicating that, in the event of a federal government shutdown, the court would remain open for business and be fully staffed to provide all normal judicial business functions until further notice. Subsequently, on December 28, 2018, the Federal Circuit issued an Order that provided for the continuation of court operations, stating that “[t]hrough non-appropriated funds, the federal judiciary can remain open and continue normal operations for a limited period during the partial shutdown.” The December 28, 2018 Order stated that all cases scheduled for oral argument from January 7 through 11, 2019, including those involving government counsel, would proceed as scheduled. The Federal Circuit has since issued an updated Order on January 18, 2019, ordering that the Federal Circuit will remain open and operational and that “[o]ral arguments will continue to be heard as scheduled.” The Federal Circuit’s February 2019 sitting is scheduled for February 4 through 8, 2019. Interestingly, unlike the prior December 28, 2018 Order that provided for the Federal Circuit to be “fully staffed to provide all normal judicial business functions,” the January 18, 2019 Order only provides for “sufficient staff necessary to perform all functions necessary to support the exercise of the judicial power in the resolution of cases under Article III.” Nonetheless, practitioners should be advised that, absent a grant of either a motion for extension of time or a motion to stay in a particular case, all Federal Circuit filing deadlines remain in effect until further order of the court.