Patent decision

BL number

O/149/11

Concerning rights in

GB 2441058B

Hearing Officer

Mr S Probert

Decision date

5 May 2011

Person(s) or Company(s) involved

Rigcool Ltd v Optima Solutions UK Ltd

Provisions discussed

Section 37(5), 72(2)(b). Art. 23.3 CPC

Keywords

Entitlement

Related Decisions

None

Summary

This decision concerns the latest date when a person may commence entitlement proceedings under section 37 - ie. when does the 2 year period end? In this case, the pursuer (claimant) commenced proceedings on the second anniversary of the date of grant, and argued that article 23.3 CPC should be given direct effect. The defender (patentee) argued that parliament deliberately clarified article 23.3 CPC when implementing the provision in UK law (sect 37(5)), and as a result, the two year period begins on the date of grant, and ends on the day before the second anniversary of grant.

The hearing officer decided that, whatever the reason for the change of words, there was a real difference in meaning. As a result, he did not have any authority to give direct effect to the CPC provision, and the 2 year period must end on the day before the second anniversary of grant. That meant that the proceedings were commenced out of time. The same reasoning applied to an application for revocation under section 72(1)(b).

The hearing officer invited the parties to provide written submissions after the hearing on the issue of whether rule 107 could (or should) be used to correct an irregularity in this specific case.