The application was filed on 29 June 2009 by an applicant who was resident in China, but who had correctly provided a UK address for service. The application proceeded normally until 21 June 2011, when the Office sent the applicant a reminder that if he wished to continue with the application, the request for a substantive examination should be filed on a Form 10 with the prescribed fee, on or before 5 July 2011, unless a request to extend that time by two months was made at an additional cost.
The Form 10 was not received by the due date but was filed late on 15 August 2011, but with no request to extend the deadline for filing the Form 10. Subsequent attempts by the Office to contact him by letter in August and October 2011 proved to be unsuccessful. The application was therefore terminated. It transpired the first the applicant knew his request for substantive examination had been unsuccessful due to its late filing was when he received copies of the official letters forwarded by his family to his address in China on 3 November 2011. On 28 December 2011 the applicant requested reinstatement of the application. After examination of the evidence filed by the applicant, the Office wrote to him explaining that the case for reinstatement had not been made out because the failure to file the Form 10 on time was not ‘unintentional’ as required by s. 20(A) of the Act. The applicant subsequently requested to be heard on this matter.
At the hearing, the HO had to investigate in further detail whether the application for reinstatement had been filed within the time allowed under rule 32(2)(a) because the evidence filed prior to the hearing was inconclusive on this point. After submissions at the hearing and further evidence filed after it, he concluded that the request for reinstatement had been filed in time.
He therefore went on to consider whether the applicant’s failure to file his Form 10 on time was unintentional. He concluded that Mr Oluwa had been made aware of the all the requirements he needed to fulfil in order to file his Form 10 but that had made a conscious decision to put off making the payment until after he had returned home to China. As such he found that the applicant’s failure to file the Form 10 on time could not be taken to have been unintentional as required by section 20A(2) of the Act.
The reinstatement request was therefore refused.
Judges:
Mr A R Bushell
Citations:
[2012] UKIntelP o37812, GB0911197.2
Links:
Statutes:
Intellectual Property
Updated: 06 November 2022; Ref: scu.465347