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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> BW Industries Limited (Patent) [2013] UKIntelP o03413 (22 January 2013)
URL: http://www.bailii.org/uk/cases/UKIntelP/2013/o03413.html
Cite as: [2013] UKIntelP o3413, [2013] UKIntelP o03413
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BW Industries Limited (Patent) [2013] UKIntelP o03413 (22 January 2013)
Patent decision
- BL number
- O/034/13
- Concerning rights in
- EP1573142
- Hearing Officer
- Mrs C A Farrington
- Decision date
- 22 January 2013
- Person(s) or Company(s) involved
- BW Industries Limited
- Provisions discussed
- PA Act 1977 Section 28 (3)
- Keywords
- Restoration
- Related Decisions
- O/374/06, EWHC2770
Summary
The 7th year renewal fee was not paid and the patent ceased on 28 November 2009. An application for restoration was filed on 3 May 2011 within the 19 months prescribed by rule 41(1) (a) of the Patents Rules.
The patent application EP1573142 was granted to Framing Solutions PLC (FS) with effect from 19 July 2006. On 8 December 2008 the proprietor entered into a Sale and Licence Agreement with BW Industries Limited (BW); the terms of that agreement placed an obligation on FS to keep the patent in force by paying the renewal fees or, on failure to do so to offer to assign the patent to BW.
The relevant period for paying the 7th year renewal fee was from 28 August 2009 to 31 May 2010. On 25 March 2010 FS went into administration; on 27 September 2010 BW contacted the administrators and the patent was assigned to them on 15 March 2011.
The attorney for BW argued that the failure to pay the renewal fee was clearly unintentional because the company was in administration and was clearly unable to pay it. The Office’s response was that failure to pay due to a lack of funds could not be unintentional.
The Hearing Officer was not satisfied that during the period 28 August 2009 up to the administration of FS on 25th March 2010 the failure to pay was unintentional. However, during the period 25th March 2010 to 31 May 2010 the administrators stood in the position of the proprietor and were responsible for the patent. Accepting the evidence of their intent at face value i.e. had they known of the obligation to pay the renewal fee then it would have been paid, the Hearing Officer concluded that on the balance of probabilities the absence of that knowledge led to the failure and that failure was unintentional. She therefore ordered that the patent be restored.