Intellectual Property Blog

How the Government Shutdown Impacts Intellectual Property Owners

It has been a week since the United States government shut down. With no agreement between Congress on a funding bill for fiscal year 2026, the United States government ceased its non-essential operations at 12:01 am on October 1, 2025.

Later that morning, the United States Patent and Trademark Office (“USPTO”) website posted a statement confirming that “the USPTO will remain open and fully operational until further notice under operating reserves from the prior year’s fee collections.” On the copyright side, the United States Copyright Office (the “Copyright Office”) website announced that “[d]ue to a lapse in government funding, the U.S. Copyright Office is closed, as is the Library of Congress.” Does this mean that trademark applications are in the clear and anything involving copyright should be avoided? The answer for both, surprisingly, is “not necessarily.” IP rights holders of either type may be affected, and it may just be a matter of when.

Trademarks During the Shutdown: Still Safe for Now

How the USPTO’s funding reserves are keeping operations going and what could change if reserves run out.

Because the USPTO is funded by filing fees, it enjoys a certain level of immunity from the shutdown, compared to other governmental agencies and will maintain operations with its current funding reserve and fees. When those reserves run dry, however, according to the Department of Commerce’s shutdown plan issued on September 29th, the majority of USPTO employees will be furloughed. Because the trademark side of the USPTO operates separately from the patent side, funds could conceivably be exhausted for different units at different times, meaning one side could remain open while the other closes. In the event funds are exhausted for both units, the shutdown plan dictates that employees who serve “mission-critical” roles for maintaining intellectual property rights and overseeing foreign activity will be exempt from the furlough.

Included in the exemption is the Trademark Trial and Appeal Board, which will also retain a minimum level of staffing to manage ongoing contested cases that require the entry of orders to preserve party rights, evidentiary rulings related to discovery, and address pre-scheduled proceedings. In the event of a closure of the USPTO for an entire day, filing deadlines would be extended to the next business day, as is the case with a federal holiday. (See 37 C.F.R. §§ 1.7, 1.9(h).)

While the USPTO currently remains open, it has already issued a communique that approximately one percent of its workforce will be laid off. In a letter issued by acting patent commissioner Valencia Wallace to USPTO staff on October 1^st, employees learned that the layoffs were a reduction in force “in order to focus on core, mission-critical operations.” Some USPTO employees on the communications team, the office of public engagement, and the patent unit were let go. On the same day, the USPTO posted a notice that their regional satellite office in Denver will close and remain permanently closed. 

Copyright Office Closure: What You Need to Know

How the Copyright Office’s full closure affects filings, communications, and enforcement actions.

During the closure, the Copyright Office will be unable to process filings, respond to inquiries, or update information on the Copyright Office website. The Copyright Office website will still be operative for applications, for registration of works and recordation submissions which can be filed electronically, but these filings will not be processed. As the Copyright Office staff is unable to access email and process any filings, the closure will result in a delay of processing filings and issuance of registrations until reopening.

Should You Keep Filing Copyright Applications?

Why it’s still important to file even when the Office isn’t processing and how to protect your effective registration date.

Even though the Copyright Office is not currently processing filings, copyright owners should still be diligent in taking action to protect and enforce copyrights. Since it is still possible to file applications through the website, those filings should be assigned the date of receipt, despite the delay in processing. Continuing to file applications will help copyright owners ensure the earliest possible effective date of registration and get ahead of what could be an extensive processing backlog.

For some copyright owners, the delay in processing applications with the Copyright Office could result in the inability to enforce copyright, or file infringement suits to deter and prevent infringement, as federal registration of copyright is a prerequisite to filing a lawsuit for copyright infringement (see 17 U.S.C. § 412). While copyright protection commences upon creation of the copyright, registration of the copyright is necessary to enforce copyrights through lawsuits.

The closure of the Copyright Office could have practical implications for copyright owners in copyright infringement cases as well. To be eligible for an award of statutory damages and attorneys’ fees, copyrighted works must be registered with the Copyright Office prior to when an infringement commences, or, if the work is published, within 3 months of publication.

While it’s impossible to predict how long the shutdown will last, it is important that IP rights owners continue to file applications and maintenance documents as usual in order to protect and maintain their intellectual property assets. The government shutdown does not freeze statutes of limitations to take actions on infringement trademarks, copyrights, or any other IP asset, so IP rights owners cannot freeze protecting and enforcing their assets either. The key to short and long term protection is protecting IP assets then taking steps to maintain and enforce those rights.

McBrayer Can Help Navigate the Effects of Shutdown

McBrayer’s Intellectual Property attorneys stand ready to assist with managing IP assets during the shutdown and when the government resumes normal operations.

Mari-Elise Paul is a Member of McBrayer PLLC and Chair of the Intellectual Property practice group, based in the firm's Louisville office. Her practice encompasses all facets of intellectual property, including clearance, prosecution, enforcement, and litigation. Mrs. Paul can be reached at mpaul@mcbrayerfirm.com

Services may be performed by others. This article does not constitute legal advice.