[E-trademarks] Shutdown

[David Boundy]

Since the AIA (and for a few years before, if I recall), the PTO tacks on
an extra 10-20% on all fees to build an "operating reserve."  I question
whether this is legal (AIA section 10(a)(2) says "Fees may be set or
adjusted under paragraph (1) *only to recover the aggregate estimated costs*
to the Office for processing, activities, services, and materials relating
to patents ... and trademarks .., including administrative costs of the
Office ... ")  I'd sure feel better about this if Congress authorized the
operating reserve, but -- who's going to complain.



On Tue, Sep 30, 2025 at 10:09 AM Gordon, Michael via E-trademarks <
e-trademarks at oppedahl-lists.com> wrote:

> The USPTO is, of course, part of the Department of Commerce, which posted
> its shutdown plan yesterday here:
> https://www.commerce.gov/sites/default/files/2025-09/DOC-Lapse-Plan-2025.pdf
>
> The sections about the USPTO generally and the Office of Trademarks
> specifically appear on pages 43 and 44:
>
> If a lapse in appropriations cannot be mitigated through existing
> balances, such as utilization of the Patent and Trademark Operating
> Reserves, most USPTO employees will need to be furloughed. In the event
> that a shutdown of the USPTO is necessary, the following plan will be
> executed as described below.
> Given the nature of the USPTO's business operations, any available
> balances from patent operations and trademark operations may not expire at
> the same time. It is possible that one business unit will continue to
> operate at normal levels while the other will shut down. The plan below
> covers the expiration of funds for both patent and trademark business
> units. Should that occur, the activities noted in the areas below reflect
> the bare minimum set of activities necessary to protect against the actual
> loss of intellectual property (IP) rights and the protection of life and
> property.
> ...
> During a furlough, the Office of Trademarks will except employees
> responsible for protecting mission critical Intellectual Property and
> overseeing all foreign activity. In addition, employees who provide
> technical and IT support for systems necessary to meet legal obligations to
> the public and international treaties will remain.
>
>
> The summary table on page 48 states that if "prior year annual
> appropriations and the proceeds of offsetting collection authorities remain
> available to finance operations, USPTO will continue full operations," but
> in the event of a shutdown, of the USPTO's 13,789 employees, 236 would be
> excepted from a shutdown.
>
> As far as I can tell, the USPTO hasn't given an estimate of how long money
> would remain available to fund the operations of the various offices, even
> internally (unless they're really good at keeping it a secret).
>
> This is better than what the State Department is doing, which is
> discontinuing all normal operations regardless of whether money is
> available unlike prior shutdowns and also trying to avoid back pay for
> their employees as required by the Government Employee Fair Treatment Act
> of 2019 (that might not work).
>
>
> Michael R. Gordon
> Assistant General Counsel
> Licensed to practice only in Maryland, North Carolina, and the District of
> Columbia
> michael.gordon at cfraresearch.com
> o: +1.646.517.2461
> Clients First * Integrity * Courage * Excellence
>
>
>
>
> -----Original Message-----
> From: E-trademarks <e-trademarks-bounces at oppedahl-lists.com> On Behalf Of
> Janet Satterthwaite via E-trademarks
> Sent: Monday, September 29, 2025 7:33 PM
> To: For trademark practitioners. This is not for laypersons to seek legal
> advice. <e-trademarks at oppedahl-lists.com>
> Cc: Janet Satterthwaite <jsatterthwaite at potomaclaw.com>
> Subject: [E-trademarks] Shutdown
>
> CAUTION: EXTERNAL MESSAGE
>
> Hi all
> I was speaking with an Examiner today who told me they have not been
> informed whether they will be closed if there is a shut down. Can we share
> intel on this? Thx Janet Sent from my iPhone
> --
> E-trademarks mailing list
> E-trademarks at oppedahl-lists.com
> http://oppedahl-lists.com/mailman/listinfo/e-trademarks_oppedahl-lists.com
>
> --
> E-trademarks mailing list
> E-trademarks at oppedahl-lists.com
> http://oppedahl-lists.com/mailman/listinfo/e-trademarks_oppedahl-lists.com
>


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