Extensions of time
223 Extensions of time
The Commissioner must extend the time for doing a relevant act that is required to be done within a certain time if the act is not, or cannot be, done within that time because of an error or omission by:
the Commissioner or a Deputy Commissioner; or
an employee; or
a person providing, or proposing to provide, services for the benefit of the Patent Office; or
the receiving Office; or
the International Bureau of the World Intellectual Property Organization.
Where, because of:
an error or omission by the person concerned or by his or her agent or attorney; or
circumstances beyond the control of the person concerned;
a relevant act that is required to be done within a certain time is not, or cannot be, done within that time, the Commissioner may, on application made by the person concerned in accordance with the regulations, extend the time for doing the act.
If:
a relevant act that is required to be done within a certain time is not done within that time; and
the Commissioner is satisfied, on the balance of probabilities, that the person concerned took due care, as required in the circumstances, to ensure the doing of the act within that time;
the Commissioner must, on application made by the person concerned in accordance with the regulations and within the prescribed period, extend the time for doing the act.
An extension of time under subsection (2A) cannot exceed the period prescribed for the purposes of this subsection.
The time allowed for doing a relevant act may be extended, whether before or after that time has expired.
Despite subsection (3), the time allowed for doing a relevant act may be extended under subsection (2A) only after that time has expired.
The Commissioner must advertise in the Official Journal:
an application made for an extension of time for more than 3 months; or
an application made for an extension of time for doing a prescribed relevant act in prescribed circumstances.
Subject to subsection (6A), a person may, as prescribed, oppose the granting under subsection (2) or (2A) of the application.
If the Commissioner is satisfied, on the balance of probabilities, that an application under subsection (2) or (2A) would not be granted even in the absence of opposition under subsection (6):
the Commissioner need not advertise the application in accordance with subsection (4); and
the application cannot be opposed, despite subsection (6); and
the Commissioner must refuse to grant the application.
Where:
a patent application lapses, or a patent ceases, because of a failure to do one or more relevant acts within the time allowed; and
the time for doing that act or those acts is extended;
the application or patent must be treated as having been restored.
Where:
a provisional patent application lapses under subsection 142(1) at the end of the period prescribed for the purposes of section 38; and
that period is extended;
the application must be treated as if it had not lapsed.
Where the Commissioner grants:
an extension of more than 3 months for doing a relevant act; or
an extension of time for doing a prescribed relevant act in prescribed circumstances;
the prescribed provisions have effect for the protection or compensation of persons who, before the day on which the application for extension of time is advertised under subsection (4), exploited (or took definite steps by way of contract or otherwise to exploit) the invention concerned because of the failure to do the relevant act within the time allowed, the lapsing of the patent application or the ceasing of the patent, as the case may be.
Infringement proceedings cannot be brought in respect of an infringement committed:
between the day on which the patent application lapses and the day on which it is restored; or
between the day on which the patent ceases and the day on which it is restored.
In this section:
relevant act means an action (other than a prescribed action) in relation to a patent, a patent application, or any proceedings under this Act (other than court proceedings), and includes the making of a Convention application within the time allowed for making such applications.
This provision refers to the regulations (the regulations
, prescribed period
, prescribed circumstances
). Made under this Act:
- Patents Regulations 1991 · under s 228
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