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On December 22, 2015, a major power outage occurred at the United States Patent and Trademark Office’s (USPTO) headquarters in Alexandria, Virginia. The outage damaged equipment that caused the failure of its electronic systems and the subsequent shut down of its IT system, which lasted for several days.

With the complete shutdown of the system, Michelle Lee, Director of the USPTO, declared December 22-24 to be a federal holiday within the District of Columbia. The USPTO released the following statement regarding the outage:

In light of this emergency situation, the USPTO will consider each day from Tuesday, December 22, 2015, through Thursday, December 24, 2015, to be a “Federal holiday within the District of Columbia” under 35 U.S.C. § 21 and 37 C.F.R. §§ 1.6, 1.7, 1.9, 2.2(d), 2.195, and 2.196. Any action or fee due on these days will be considered as timely for the purposes of, e.g., 15 U.S.C. §§ 1051(b), 1058, 1059, 1062(b), 1063, 1064, and 1126(d), or 35 U.S.C. §§ 119, 120, 133, and 151, if the action is taken, or the fee paid, on the next succeeding business day on which the USPTO is open (37 C.F.R. §§ 1.7(a) and 2.196). A subsequent notice is anticipated to be issued as needed if the USPTO’s systems are not fully operational by Monday, December 28, 2015.

The patent-holding company, Elm 3DS Innovations, is suing the USPTO and Director Lee because of this declaration.  In the lawsuit, filed August 12, 2016, Elm stated the USPTO and Lee acted outside their authority and as a result of the holiday declaration; Elm is facing an unlawful Inter Partes Review (IPR) petition. They are requesting the Eastern District of Virginia declare that December 22-24, 2015 were not federal holidays in the District of Columbia and that Director Lee acted outside her statutory powers in declaring those days as such.

According to the complaint, Elm, which owns numerous patents, had served a complaint on December 24, 2014 to three companies it alleged were infringing Elm’s patents. The deadline to file an IPR by the defendants was December 24, 2015. As a result of the “unlawful” holiday, the defendants were able to the petitions on the next available day, December 28, 2015.  The complaint stated “[t]hose IPR petitions would have been considered untimely but for director Lee’s rule that declared that the USPTO would consider December 24, 2015 to be a ‘federal holiday within the District of Columbia’”. The complaint further stated that “Elm has been harmed, and is continuing to be harmed, by the institution of the untimely IPR proceedings under the auspices of director Lee’s rule.”

Elm stated that the “holiday” is inconsistent with the USPTO’s own rule which states “Federal holiday within the District of Colombia” means “any day, except Saturdays and Sundays, when the [USPTO] is officially closed for business for the entire day.” (37 CFR § 1.9(h)).

It should be noted that the USPTO was not closed for business during the aforementioned dates. Employees were expected to attend work and documents could have been filed in-person or through the United States Postal Service, which are both practices that are regularly used today

Neither the USPTO nor Director Lee has the authority to declare any day a federal holiday. Only Congress has the authority to declare a permanent federal holiday.  Interestingly, the President does have the authority to grant a “one time” holiday, which was last implemented by George H.W. Bush in recognizing the funeral of former President Ronald Reagan.