As in the past, the US Patent and Trademark Office (“USPTO”) has declared Thursday, December 24th, in addition to Friday, December 25th, a “federal holiday”. The action is the result of President Trump’s decree dated December 11, 2020 to extend the traditional Christmas holiday. Due to this extended holiday, the USPTO will consider all lawsuits and filings with a notice of December 24th or 25th as timely if such lawsuits or filings are completed on Monday, December 28th.
Despite this declaration, correspondence electronically transmitted to the USPTO is deemed to have been filed in the USPTO on the day the electronic transmission is received – including weekends and holidays. For this reason, filing international applications with the USPTO may have adverse consequences for determining priority periods under Article 4 (C) (3) of the Paris Agreement in other countries. For example, the ability to file applications electronically in the USPTO on weekends and holidays may result in the loss of priority rights in foreign jurisdictions set out in international filings with the USPTO if applicants choose to file an international filing on the next business day. In these circumstances, if their national law strictly contains the provision of Article 4 (c) (3) of the Paris Agreement and the USPTO considers the filing to be open, other patent offices may deny the priority claim on the grounds that the international application was not filed in time of requests on weekends and public holidays. For this reason, applicants may prefer not to rely on “next business day” rules when filing foreign priority applications with the USPTO, but rather to file the application electronically before the 12 month priority period of the Paris Agreement has expired.
Happy Holidays from your patent attorneys at Squire Patton Boggs!