USPTO sued for ‘exceeding authority’ with federal holiday declaration
A patent-owning company has sued the US Patent and Trademark Office (USPTO) and its director Michelle Lee after an “illegal” three-day federal holiday led to it facing an unlawful inter partes review (IPR).
In December last year the USPTO’s office in Alexandria, Virginia suffered a major power outage and failure of its electronic systems.
With all the electronic systems down, the office’s director Lee declared December 22 to 24 a federal holiday for USPTO staff within the District of Columbia, where the office is located.
In a lawsuit filed on August 12 at the US District Court for the Eastern District of Virginia, Elm 3DS Innovations sued Lee and the office, claiming it is now facing an unlawful IPR petition as a result of the office’s closure and that only Congress has the legal power to declare a federal holiday.
In the complaint, Elm, which owns multiple patents related to memory circuits, referenced a patent infringement lawsuit it filed against Micron Technology, Samsung and Sk Hynix at the US District Court for the District of Delaware.
The defendants were served with the complaint on December 24, 2014.
According to the America Invents Act, which introduced the IPR procedure, a petition challenging any patents included in a complai nt has to be filed within one year of receiving the complaint.
According to Elm, the deadline for the three companies’ subsequent IPR petition should have been December 24, 2015, but that due to the “unlawful” public holiday, it was then filed on the next available day, December 28.
Elm is asking the court to declare that the three-day period should not have been a federal holiday and that Lee acted outside the scope of her authority.
Furthermore, it is seeking a declaration that accepting an IPR petition outside of the statutory deadline was also in contravention of her authority.
“Those IPR petitions would have been considered untimely but for director Lee’s rule that declared that the USPTO would consider December 24, 2015 to be a ‘federal holiday within the District of Columbia’,” the complaint said.
It added: “Elm has been harmed, and is continuing to be harmed, by the institution of the untimely IPR proceedings under the auspices of director Lee’s rule.”
