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United Kingdom Intellectual Property Office Decisions |
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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> Gradco (Japan) Ltd and KRDC Co. Ltd. (Patent) [2008] UKIntelP o30508 (10 November 2008) URL: http://www.bailii.org/uk/cases/UKIntelP/2008/o30508.html Cite as: [2008] UKIntelP o30508 |
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For the whole decision click here: o30508
Summary
This was a somewhat unusual restoration case in that it centres around the time periods in which to file a legitimate application for restoration of a patent rather than the facts and circumstances surrounding the failure to pay the renewal fees.
The renewal fees in respect of the fifth year of this patent fell due on 11th July 2006. The renewal fees were not paid by that date or during the period allowed under section 25(4) upon payment of the prescribed additional fees. The application for restoration was filed on 11th March 2008, outside the thirteen months prescribed under rule 40(1) of the Patents Rules 2007 for applying for restoration.
Notwithstanding this, the applicant requested that the Comptroller use his discretion under Section 101 in allowing the application to stand and that it should also be considered under the terms of the Human Rights Act 1998, Part II, The First Protocol, Article 1, Protection of Property.
The applicant suggested that s.101 in some way bestows a general discretion upon the comptroller to accept an action or an application despite the fact that it is not in compliance with the Act and Rules. The HO decided s.101 doesn’t bestow any discretion to do anything. It simply states that where discretion is vested elsewhere in the Act and Rules, a party has the right to be heard before that discretion is exercised. So it does not bestow any general discretionary ability on the comptroller to overlook a failure to meet a statutory requirement. Thus he found he had no discretion to overlook the failure to meet the rule 40(1) period under s.101 nor under Schedule 4 Part 1 to the 2007 Rules, which specifically precludes Rule 40(1) from being extended.
He also found that UK patent law adequately provides for restoration of patents and the applicant did not comply with these provisions. There had been no limitation of access to these provisionsand hence no deprivation of possessions under the rights afforded through the Human Rights Act 1998.The application for restoration was therefore refused.
