Rigcool Ltd v Optima Solutions UK Ltd, BL O/149/11, 5 May 2011
An application to the IPO to commence entitlement proceedings was filed on the second anniversary of the grant of the patent concerned.
A hearing officer of the IPO held that the wording of section 37(5) of the Patents Act 1977, under which the period for filing an application for entitlement proceedings expires after two years beginning with the date of grant (ie the period expires the day before the second anniversary of grant), prevailed over the equivalent wording in article 23.3 of the Community Patent Convention, under which the period expired two years after the date of grant (ie period expires on the second anniversary).
This was despite the provision of section 130(7) of the Patents Act which declares that section 37(5) is one of those sections framed so as to have, as near as practicable, the same effect as the corresponding provisions in the European Patent Convention and Community Patent Convention.
There was a real difference in meaning between section 37(5) and article 23.3 CPC, and a hearing officer of the IPO did not have discretion to vary the meaning of UK law.
Accordingly, the application was out of time.
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