I recently encountered a bug in the Israel PTO’s system for sending notices to applicants and practitioners.
Once upon a time, the Israel PTO sent practitioners paper copies of correspondence. That’s mostly gone by the wayside (patent certificates are the notable exception that still sent by snail mail). But the question is, what’s the date from which deadlines are calculated – the date on which the ILPTO puts the notice in the hopper, or the date on which it’s actually sent?
Normally there’s no difference – an office action, for example, is sent by email on the same date that the examiner puts it into the system to be sent. So a copy goes to the practitioner on that date, and a copy is uploaded to the public database as well, showing the same date. The copy of the OA received by the practitioner, which is attached to the email as a pdf file, is automatically given a file name that includes the application number and the date on which the file was sent to the applicant, as well as some other information that means something to the patent office but not to the rest of us.
But what happens when there’s a delay between when the examiner loads the office action into the system, and when the OA is actually sent?
It turns out that if an examiner loads an OA into the system on, say, Wednesday evening, and the OA isn’t sent by email until Thursday morning, the pdf file sent to the practitioner shows the Thursday date, but the database records the OA as having been sent on Wednesday. Obviously, this has implications for how the system calculates deadlines: if the official deadline falls on a Friday, when the ILPTO is closed, the deadline for response is automatically pushed off until Sunday, whereas if the deadline falls on a Thursday, then that’s the deadline.
Legally, of course, it’s the date that the notice was actually sent, not the date it was uploaded to sent, that’s controlling, but if you’re in a situation where the full response period, and not a one-day foreshortened period, is needed, then you’ve got two choices: file on the actual deadline date – the one that the ILPTO’s system says is on the first day of the extension period – pay for the extension, and then request a refund with an explanation why the response wasn’t late; or don’t pay the extension fee, hope the system records the response as being filed and puts it on the examiner’s docket, and if you eventually get a notice that an extension fee is due, call or write the ILPTO to fix the issue.
I discovered this recently when preparing an OA response: based on the mailing date of the email and the date in the filename of the pdf file of the OA, I had informed the client that the deadline was on date X. While preparing the response, I discovered that the database listed the deadline as X-1. In my case it didn’t matter, as the client had provided instructions ahead of date X-1, but I nevertheless called this to the attention of the senior person at the ILPTO responsible for the system. To that person’s credit, the person looked into the matter and I got response later that day. The response itself, however, wasn’t wholly satisfying; here’s my translation from Hebrew:
“The matter was investigated. In accordance with the logic set [i.e. programmed - DJF] in the system, the system sends the letter [by email] within several minutes of its creation. From the investigation that was carried out, the phenomenon of a delay of several hours between creation of the document and its being sent by email is exceedingly rare. We will take into account the extra day required because receipt of the notice with several hours’ delay.”
In other words, they’re not going to fix the system, so it’s on us practitioners to check the dates on these things. It’s worth noting that files don’t appear in the database until after the nightly update, and sometimes not for several days after being sent, so now there’s another thing to docket to check for: make sure the date in the database matches the date on the pdf file. Thanks, ILPTO.
Of course, as a colleague noted, getting an OA by email one day later than one should have received it is still an improvement over waiting for letters to arrive by snail mail.