Patent decision

BL number

O/166/09

Concerning rights in

GB2387536

Hearing Officer

Mr G J Rose'Meyer

Decision date

17 June 2009

Person(s) or Company(s) involved

Mr Edwin Smith

Provisions discussed

PA Act 1977 Section 28(1), Rule 107

Keywords

Restoration

Related Decisions

None

Summary

This restoration case centred around the time periods in which to file a legitimate application for restoration of a patent. The renewal fees in respect of the fifth year of this patent fell due on 15th Aug 2006. The renewal fees were not paid by that date or during the grace period allowed under section 25(4). The application for restoration was filed on 29th April 2008, outside the thirteen months prescribed under rule 40(1) of the Patents Rules 2007 for applying for restoration. The actual date by which the application needed to be filed was 31st March 2008.

The applicant argued that he had been very unwell throughout the relevant period when the patent could have been renewed or restored, but being an experienced user of IPO services, he had always kept in contact with the office, checking on dates and deadlines to do with this and his other patents. He said based on advice he had from the IPO and due to difficult personal circumstances he decided not to renew the patent by the necessary date, but would rely on the restoration of the patent at a later date. He said he had been consistently advised by the IPO that the final date by which he could apply for restoration was 30th April 2008. He provided some documentary evidence that this was the case, but this evidence showed that the erroneous advice was given on the 2nd & 5th April 2008 i.e. outside the period by which the restoration needed to be filed in any case, thus it had had no bearing on the late filing. The applicant argued that these were not the only two times when he had been wrongly advised. There had been others, which had affected his ability to file of the restoration on time.

The HO found no evidence to this effect. He found that no procedural errors had occurred and therefore the only potential remedy open to the applicant i.e. rule 107 for the correction of irregularities could not be used. He also found that the law provides generous time for restoration of patents and unfortunate though the circumstances of this case were, the applicant did not comply with these provisions. The rule 40(1) period is specifically excluded from extension, therefore he had no option but to refuse the application for restoration.