Wednesday, August 17, 2016

When Little Things Matter

Lawyers and accountants are often chided for paying way too much attention to details that seem relatively insignificant.  A comma here, a decimal place there, do such details ever REALLY matter, in the big picture?

In intellectual property law, such things can sometimes can matter quite a bit, actually.

For example, the United States Patent and Trademark Office is a stickler for deadlines.  The reason is not because they arbitrarily choose to be punctilious.  The reason is that the inherent nature of a large and important bureaucracy that recognizes patent rights is such that the exercise of discretion creates problems that cannot be easily fixed, due to the substantial number of filings involved.

Dates and deadlines become an important way to keep the situation under control.

In other words, if a Patent Examiner in one case has the authority to waive the passage of a strict deadline for one applicant, does she have that same authority to reject another?   And what governs their decisions?

In the United States' Article III Federal Court System, Federal Judges have greater authority and discretion, in individual cases.  The reason is that Article III Federal Judges are nominated by the President of the United States and confirmed by vote of the entire United States Senate to receive life tenure.

Therefore, Article III Federal Judges have the power to decide when to afford leniency, and when to impose strict deadlines, and impose consequences.   The appeals process affords them a fair degree of discretion in most instances.

But government employees (especially career ones) at large, important government agencies such as the Patent Office are not required to be vetted at so high a level.  Consequently, the system of law gives them only very limited authority over such decisions.  Miss a deadline, and you are out of luck.

In one case, that strictness mattered quite a bit.

IPWatchdog Blog notes that the Director of the Patent Office declared December 23, 2015 a "federal holiday" when the Patent Office's computers crashed.  Because of that crash, any patent filings that were due on December 23rd, were automatically punted until December 28th, which happened to be the next business day after Christmas.

However, only the President and Congress can declare a national holiday.  Therefore, the Director employed the wrong regulation, which gave her similar authority to have declared an "emergency."

But because the wrong regulation was relied upon, there are now other patent owners who are  aggrieved and affected by those filings, and have sued to block the application of the "federal holiday" declaration, thus depriving their adversaries of the timeliness of their own filings on December 28th.

So, sometimes in IP law, little things like anticipating the very strict deadlines in the Patent Office can have big consequences.

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