Law360, New York (January 25, 2016, 11:47 AM EST) -- A Jan. 4, 2016 article in IP Law360 raised several issues regarding the U.S. Patent and Trademark Office's handling of the December 2015 power outage, including the USPTO's statutory authority to declare the power outage days as federal holidays and vulnerabilities of patents having bar dates on a power outage day but filed on the next succeeding business day. Patentees can breathe a sigh of relief in at least one respect — future attacks on "power outage patents," i.e., patents based on applications with a bar date on a USPTO power outage day, but filed on the first business day after the USPTO electronic filing system came back online, are highly unlikely. In the 2008 Aristocrat decision, the Federal Circuit reiterated that "[p]rocedural lapses during examination, should they occur, do not provide grounds of invalidity."[1] Still, clarification of the USPTO's statutory basis to declare the power outage patents as timely filed is needed to protect against several potential pitfalls....
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