Summary
Patent application GB0608098.0 entitled “Apomorphine Formulation”, filed on 25 April 2006, relates to a non-aqueous liquid formulation which contains the dopamine agonist, apomorphine, and is designed for administration to the nasal or buccal cavities of a patient.
The compliance date for this application was 18 May 2011 which was extended as-of-right to 18 July 2011 under rule 108(2). A response from the applicant to an outstanding examination, report dated 22 June 2011 with a response date of 6 July 2011, was filed on 6 September 2011 following a two month extension to the reply date under s117B and rule 109. The applicant sought a further extension to the compliance period, under rule 108(3), to 19 September 2011 so that the response filed on 6 September and subsequent amendments filed on 19 September 2011 could be taken into account. The examiner indicated that the amendments dated 19 September 2011 would place the application in order for grant if the discretionary extension request was allowed.
The hearing office found that the applicant failed to meet the requirements of rule 108(3) and as a consequence, discretion could not be exercised in favour of the applicant and the request for an extension to the compliance date was refused.
The applicant provided F52 only with their initial request for a further extension, but included no additional materials to cover the ground for the request or evidence in support of this ground for a further extension. All three elements are required before discretion can be exercised to extend any time period under rule 108(3).
The hearing officer found that subsequent correspondence from the applicant, did provide a ground for the request i.e., an administrative error that lead to the incorrect recording of the extended compliance date. However, the applicant failed to furnish any evidence in support of this ground. Thus, the applicant failed to meet all the requirements of rule 108(3) and, as a consequence, discretion could not be exercised in favour of the applicant. The request for an extension was refused. Thus the amendments filed on 6 and 19 September 2011 were out of time
The case was remitted to the examiner to consider if the application was in order when the compliance date expired on 18 July 2011.