As it has done in the past, the United States Patent and Trademark Office (“USPTO”) has declared Thursday, December 24, in addition to Friday, December 25, to be a “federal holiday.” The action comes as a result of President Trump’s December 11, 2020 Executive Order extending the traditional Christmas Federal holiday. As a result of this extended holiday, the USPTO will consider all actions and filings with either a December 24th or 25th deadline to be timely if such actions or filings are completed on Monday, December 28.
Despite this declaration, correspondence transmitted electronically to the USPTO will be deemed filed in the USPTO on the date the electronic transmission is received — including weekends and holidays. For this reason, there are possible adverse consequences regarding the determination in other countries of priority periods under Article 4(C)(3) of the Paris Convention when filing international applications with the USPTO. For example, the ability to file applications electronically on weekends and holidays in the USPTO may result in loss of priority rights in foreign jurisdictions designated in international applications filed with the USPTO, if applicants elect to file an international application on the next succeeding business day. In such circumstances, other Patent Offices may deny the priority claim on the basis that the international application was not timely filed if their national law strictly incorporates the provision of Paris Convention Article 4(c)(3) and considers the USPTO to be open for the filing of applications on weekends and holidays. For this reason, applicants may prefer not to rely on the “next business day” provisions when filing applications claiming foreign priority with the USPTO, and instead file the application electronically before the Paris Convention twelve-month priority period has expired.
Happy holidays from your patent attorneys at Squire Patton Boggs!