Post Offices at the End of the Earth
The usual method to file with the USPTO these days is by electronic filing, through the USPTO’s Patent Center. Electronic filing in the USPTO began in 2006, and is available for almost all documents submitted to the USPTO.[1] Electronically-filed documents are counted as received at the time the transmission is received at the USPTO, in Eastern Time (ET), 37 CFR 1.6(a)(4). This means, for example, a paper electronically filed in California at 10pm Pacific Time (PT) is counted as filed at 1am the next day, due to the three-hour difference between PT and ET, which is the time that applies in Alexandria, Virginia, where the USPTO main office is located. Is there a way around this limitation, that would allow the California attorney to file a paper later than midnight ET (9pm PT) and still get the paper counted as being filed on the same day it is in California?
One way around this limitation, for certain papers (not the filing of a new application – see below), is for the California attorney to use a certificate of electronic filing or facsimile transmission, as authorized by 37 CFR 1.8(a). The paper must have a signed certification attesting to its transmission on a certain date, and must be transmitted on that date (local time). Using a certificate of transmission, the California attorney could submit through Patent Center a Reply to an Office Action prior to midnight PT the day it was due, and have the Reply counted as timely filed, even though it was received by the USPTO early the next day ET.
The same section also allows certificates of mailing, in which the certification is not of transmission of the paper, but of the paper being mailed by first class US mail. Using this process the California attorney could timely file the reply by making the certification, sealing the Reply in an envelope with first-class postage affixed, and dropping it in the US mail.[2]
But there are papers not eligible for certificates of transmission or mailing, such as the filings of new applications, or national-stage entries of PCT applications.[3] What of them? The only alternative to electronic filing would be submitting them by USPS Priority Mail Express, using the procedure outline in 37 CFR 1.10. The filing date with this procedure is the “date accepted” for the filing, as filled in by a USPS employee, 37 CFR 1.10(b). That means that one must deposit the paper(s) at a US Post Office with an open retail window. For our California attorney, the Post Office open latest is the Evans Avenue Post Office in San Francisco, at which the retail window is open until 8:30pm PT. That’s still before midnight ET, so it doesn’t help our hypothetical California attorney, as long as electronic filing is available.[4] (To the author’s knowledge, there is only one US Post Office in the lower 48 states that is open later than San Francisco’s Evans Avenue Post Office, the Cardiss Collins Post Office in Chicago, which has a retail window that is open until 11:59pm Central Time (12:59am ET).)
There is another possibility, though. The US Post Office at the Anchorage, Alaska airport has a retail window that is open until 11pm Alaska Time, which is 3am ET. One would have to get the application to Alaska, and have someone take the application (in printed form) to the post office for US Priority Mail Express mailing, but it is possible to file an application three hours after midnight ET, and still obtain the previous day as the official filing date.[5]
Anchorage Alaska Post Office
Now that we’ve slipped the bounds of the lower 48 states, where is the last place for filing a paper with the USPTO using a certificate of mailing or transmission. (Which, again, will not work for getting a date for application filing or for national-phase entry.) Hawaii is two hours earlier than Alaska, so that will allow you to use a certificate of transmission to file a paper as late as 6am ET and still get credit for meeting a deadline of the previous day.[6]
But that’s not the best we can do. American Samoa is an hour earlier than even Hawaii, and there is a US Post Office in Pago Pago that appears to have a mailbox outside its building (see below). So filing in Samoa is possible with a certificate of mailing or transmission as late as 7am ET, while still being considered as meeting a deadline of the day before.[7],[8]
Like the USPS, the attorneys of Renner Otto strive to always deliver for clients, letting themselves be stopped by neither rain nor snow nor sleet nor spurious obviousness rejections. And like the USPTO, the attorneys of Renner Otto know the rules and the system that needs to be successfully navigated during patent prosecution.
[1] See MPEP 502.05(I)(B)(2) for a list of documents that cannot be filed electronically, the most prominent of which are plant patent applications and certified copies of priority documents.[2] Practitioners are on their honor not to abuse the certificate of mailing procedure. The USPTO has investigated and disciplined practitioners who on a regular basis had correspondence received by the USPTO well after the mailing date in a certification. See, e.g., Small v. Weiffenbach (Comm’r Pats. & Trademarks 1989) (suspending for five years a practitioner who “backdated certificates of mailing from three (3) to approximately twenty-five (25) days”).[3] The filings not eligible for certificates of mailing or transmission are listed in 37 CFR 1.8(a)(2).[4] Computer failure on the attorney’s end, or unavailability of the USPTO’s electronic filing system, are both possibilities, ones that strike terror in the hearts of practitioners. Waiting until the last day to file an application with a hard deadline is something to be avoided if possible, but late instructions from clients and general procrastination make it a not uncommon occurrence.[5] The Anchorage Post Office is also apparently the location in the world where a PCT application can be filed the latest for a particular filing date. [6] The retail window at the Aolele Street Post Office in Honolulu closes at 8pm, so the Anchorage Main Post Office edges it out as the location for the latest possible filing by USPS Priority Mail Express. The retail window at the Pago Pago post office, discussed below, closes at 3:30pm.[7] Baker Island, a US possession, is one hour earlier than American Samoa, but alas, it is an uninhabited atoll that is at present a nature preserve. No inhabitants means no post office or mailbox, and no internet service.In addition, there are US possessions further to the west of American Samoa and Baker Island, such as Guam and the Northern Marianas Islands, but these are on the wrong side of the International Date Line to get any benefit from filing there.[8] This suggests a business opportunity for one located in American Samoa to receive papers after midnight ET, and turn them around quickly and file them with the USPTO (along with a certificate of mailing or transmission), meeting a deadline of the previous day. The author will consider any offers to set him up in semi-retirement with an office in Pago Pago for the purposes of enabling the late timely filing of papers with the USPTO by US mail or electronic file transmission.