As the final pieces of the America Invents Act are about to go into effect March 16, intellectual property lawyers are scrambling to get thousands of last-minute patent filings in before the old rules expire Friday.
And with firms inundated by clients' interest in updating their patent filings before the country moves from a first-to-invent to a first-to-file patent system Saturday, those lawyers expressed concern that the servers at the U.S. Patent and Trademark Office may not be able to handle the surge in online filings.
Attorney Kenneth N. Nigon of intellectual property boutique RatnerPrestia in Valley Forge, Pa., said his firm has been asking clients to file in advance of March 15. He said a number of clients were looking to file last week and this week. The firm — which Nigon pointed out is just one of hundreds of patent firms across the country — has more than 120 applications currently waiting to be filed before Saturday.
"Because of that we also are kind of wary and think the patent office electronic filing system may not be able to handle it," Nigon said. "We've also prepared our in-house staff to do paper filings if need be."
Aside from the Saturday date for implementation of the new patent system, Nigon said he would expect another round of increased filings in advance of March 19, when filing fees are set to increase.
Cozen O'Connor intellectual property attorney Kyle Vos Strache said in a typical week he may personally file a handful of applications. This week, Vos Strache said, he anticipates filing dozens.
"I imagine the patent office is going to be incredibly busy come Thursday and Friday," Vos Strache said. "We've really been pushing clients to get us responses to our drafts in the last two or so weeks and not this week. It's hard to say whether the servers at the patent offices will be able to handle it."
Vos Strache said he is trying to be proactive and avoid filing anything Friday. He said there is "truly that potential for something to go wrong" in this situation. To avoid that as best as it can, Cozen O'Connor has approved its attorneys and staff to work late all this week to get everything done, he said.
Buchanan Ingersoll & Rooney's intellectual property group co-chairman, Michael L. Dever, said there will most likely be a "huge spike" in application filings Friday. That is something the USPTO had been preparing for, he said.
The USPTO is not expecting a problem this week. The office said it "has deployed sufficient server capacity to support any potential surge."
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