Is the U.S. Patent and Trademark Office Affected by the 2018 Government Shutdown?

The U.S. Patent and Trademark Office is not affected by the shutdown which has closed many government offices and agencies after Congress failed to pass a funding resolution.  Navigate to www.uspto.gov and you’ll be greeted by the banner announcing the Office is still open.

While other agencies are dependent upon immediate funding for their continuance, the USPTO maintains a reserve account of funds. The funds allow the Office to continue operating at nearly full capacity for at least a few weeks. These are collected, in part, from the applicants that have filed and prosecuted patent and trademark applications in the United States in previous years.

In December 2017, the Commerce Department issued a shutdown plan which noted: “The USPTO anticipates that it will have sufficient funds from other than current year appropriations to continue full operations for a brief period after a general lapse in appropriations commences. Therefore, all employees of the USPTO will be excepted for such period following a lapse in appropriations.” Commerce Secretary Wilbur Ross emailed USPTO employees on Friday, January 19, 2018 directing them to continue reporting for work until they were notified otherwise.

Collections from previous years enable the USPTO to operate despite furloughs at other federal agencies. The USPTO is well-funded; in fact, it generates far more money in fees than it consumes in expenses. However, fee diversion moves much of its revenue to other governmental agencies. The 2011 America Invents Act allows the Office to trap some of those fees into the reserve account before they can be diverted outside the agency.

Should the shutdown continue and the reserve funds be consumed, employees would begin to be furloughed. A small staff would nevertheless remain to accept new applications and to maintain the IT infrastructure. The electronic filing systems through which most patent attorneys and agents correspond with the USPTO would continue to operate, allowing filing dates to be established and deadlines to be met. The shutdown does close down the File Repository Warehouse, where the paper files for older patent applications are maintained. That warehouse is not operated by the USPTO and so is affected by the shutdown. As such, requests for copies of paper files (which normally take 1-4 weeks for production) will likely be delayed. This would not affect electronic files, of course.

In 2013, the government shut down lasted for two and a half weeks. The USPTO stayed open then, too, using the same reserve fund.