back to article US Patent Office sued after it declared a power outage a 'national holiday'

A patent-holding company is suing the US Patent and Trademark Office (USPTO) claiming an administrator's decision to extend filing deadlines has led to its patents being challenged in court. Elm 3DS Innovations says that the USPTO was acting outside its authority last year when, following a three-day blackout at its Washington …

  1. Stevie


    Patently obvious what would end up happening, really.

  2. DNTP

    An argument...

    …that only a lawyer could make. Actually, the companies challenging Elm are not quite operating in good faith either, if they are deliberately filing on the last day of the 1-year deadline in order to draw the case out as long as possible to annoy Elm. Which is, I guess, legal in a narrow sense, although I seem to recall instances where doing so has drawn a censure from the judge. So it's understandable (in an extremely limited, absolutionist context) why a lawyer would be trying to run this technicality into the ground.

    1. Yet Another Anonymous coward Silver badge

      Re: An argument...

      And they themselves filed on christmas eve in the hope that they wouldn't be noticed until the otther side came back to work after their holidays

      1. Anonymous Coward
        Anonymous Coward

        Re: An argument...

        I don't know much about all of this, but it sounds like the little guy has to be sneaky to try and dodge legal fights. I'm thinking no matter what day you file on, the big thugs of the arena always start a fight, so it seems smart to be sneaky, or stupid that you can be sneaky (the big thugs are sneaky too).

    2. Trigonoceps occipitalis

      Re: An argument...

      A boss I once had insisted that he was not asked to make decisions until the last possible moment. He reasonably reasoned that circumstances could be different later and he didn't want to have to change the decision 1/2/3 days/weeks/months later.

      I imagine that there could be some legal maxim that filing before the deadline is dangerous?

  3. Leeroy


    To sort your s#!t out...

  4. The Nazz

    It simply reads to me ...

    that Elm 3DS know they have a lot to be worried about if the reviews are allowed to proceed.

    1. Mark 85

      Re: It simply reads to me ...

      It sure does seem that way from here also. If there hadn't been a blackout would they still be suing the USPTO?

    2. Preston Munchensonton

      Re: It simply reads to me ...

      ...that Elm 3DS know they have a lot to be worried about if the reviews are allowed to proceed.

      Perhaps, but it could simply be that they're worried that the other three will simply spend them under the table in legal costs.

  5. Andrew Jones 2

    I wonder how they would have reacted had it been a leap year - Oh noes! an extra whole day!

  6. Eddy Ito

    I suppose legally their lawyers are supposed to take every avenue open to them in order to win or the lawyers themselves would be subject to a lawsuit or disbarment for malfeasance, incompetence, or somesuch as the next lawyer looking to make a quick buck name for themselves so chooses.

  7. Winkypop Silver badge
    Thumb Down


    The United States of Litigation....

  8. Stratman

    If the USPTO..

    .has the authority to declare a public holiday, what recourse do other workers who would have had the day off have?

  9. Swarthy
    Paris Hilton

    Lemme see if I read this right

    The patent troll filed a suit against three chip makers, the chip makers filed a Patent Review Request (on the last available day, sure). If the power had not gone out, the IPR would have been received in time. With the power out, it would not have been. So the PTO extends deadlines for filings to make up for the outage.

    If they did not grant the extension, would the chip makers be suing the PTO for stuffing up their end of the patent suit via power outage?

    1. David Neil

      Re: Lemme see if I read this right

      Not quite

      Elm filed a patent, no challenge was received up until the 363 days had passed

      Days 364 and 365 were lost due to an issue which isn't covered by the law which allows for extension to deadlines.

      Director of the PTO decided unilaterally to invoke those lost days due to the issue as a public holiday, something that only Congress has the right to do fro a Federal service.

      The issue here isn't the filing as such, it's the fact the PTO made a decision which is outside their power and will now cause Elm extra costs. On a point of law the judge will have to decide as to whether to reject the filings for IPR, or if they stand whether the PTO might be liable for a portion of the legal costs now involved.

      1. Nunyabiznes

        Re: Lemme see if I read this right

        Yep, Director Lee used poor terminology, which is a lawyer's wet dream.

        I wonder if she did that because she had declined to budget for a replacement generator system to keep the office running? Tried to weasel out of being blamed for not having a business continuity system in place and got sued instead. Good one. IF that is what happened. Gotta have something to daydream about on a Friday morning.

    2. John Brown (no body) Silver badge

      Re: Lemme see if I read this right

      "With the power out, it would not have been. So the PTO extends deadlines for filings to make up for the outage."

      On the other hand...

      Mother: Why were you late home?

      Kid: The bus was late/broke down/in an accident

      Mother: So why didn't you get the earlier bus?

      Yeah, I know, it sounds trite but it's planning ahead and building in slack time to allow for unforeseen eventualities. Unless there was a good reason for filing on the last legal day, why should an official body make allowances because of the operation being unexpectedly closed for a couple of days.

      1. Evil Doozer

        Re: Lemme see if I read this right

        That mother/kid argument is weak. To be more in line with this situation, it would be like the mother changed the door locks an hour before the kid was supposed to be home, then when the kid can't get into the house until well after curfew she says "Why didn't you leave earlier to get home before the locks changed?"

        Elm 3DS is just a patent troll. If you do a search for "elm 3ds innovations" the entire first page of results shows nothing but lawsuits. No company website, not LinkedIn profiles for employees... Just lawsuits. Suing the patent office because your patent complaints are being responded to is even more evidence you're a troll, and patent trolls are what's killing true innovation.

  10. Anonymous Coward
    Anonymous Coward

    So if it wasn't a Holiday

    Do staff have to repay the wages "earned" those two days, or did they lose two other real Holiday days they would have been off?

    Can't understand why he didn't just classified it as an "emergency", well within his right to do so. Seems there's more to this than meets the eye.

  11. John Savard


    Any thing which, like a postal service interruption, prevents the Patent Office from processing correspondence or filings on a day on which someone conscientiously presenting them by the deadline would submit them, is clearly exactly the sort of emergency the legislation was talking about. Hopefully that is how the courts will also see it.

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