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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 >> Pro Challenge Limited (Patent) [2009] UKIntelP o09009 (2 April 2009) URL: http://www.bailii.org/uk/cases/UKIntelP/2009/o09009.html Cite as: [2009] UKIntelP o09009, [2009] UKIntelP o9009 |
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For the whole decision click here: o09009
Summary
The applicants filed restoration applications on four patents, but it later transpired that a fifth had been omitted in error from the application form. The applicants requested that the fifth patent be included in the original application for restoration “in accordance with s.117”. The HO had to decide this issue first. If he found in favour of that request, he would then include the fifth patent in his considerations under s.28(3) for the other four patents. If not, only those four need be considered under s.28(3).
The HO found that s.117 did not allow the fifth patent to be entered into the proceedings for consideration under s. 28(3). He concluded that if he were to find otherwise, he would in effect (because of the facts of this case) extend a period for filing restorations which by specific provision of the law cannot be extended, i.e. rule 41(1), but that in any event the request failed under s.117 because the applicants’ error was a procedural omission and as such cannot be corrected under s.117.
So only the four patents initially entered on the restorations application form were considered under s.28(3).
The proprietor of these four cases went into administration. An Administrator was appointed and was responsible for their renewal at the time all four of them became due for renewal and throughout the period in which they could have been renewed late with fines. The evidence showed that the Administrator was generally aware that the patents had to be renewed “some time after June 2006” and that attempts were made to avail himself more specifically of the dates involved, but due to events outside his control this never transpired. However, the evidence showed that while the Administrator did not know the specific dates involved, he was aware that eventually a final date for payment for each would be reached. He was also aware that throughout the period the patents were in his care, no funds were available to make such payments. The HO concluded that in those circumstances, the failure to pay the renewal fees on time was not “unintentional” as required by s. 28 (3) and as such the request to restore the patents was refused.
