The recent decision in Kelvindale Products Pty Ltd v TFH Temporary Fence Hire Pty Ltd [2009] APO 25 is a timely reminder of the importance of file management systems. This case concerned an application for an extension of time to file a Notice of Opposition.
The patent attorneys for TFH had been instructed to maintain a watch on the status of Kelvindale’s patent application, however, as a result of a series of unfortunate events, the due date for filing the Notice of Opposition passed by without any action. Upon discovering that the date had passed, TFH’s attorneys promptly filed a request for an extension of time, arguing that the failure to file a timely notice was an error to which s 223 of the Patents Act applied, and consequently, that the Commissioner should permit an extension of time.
The Delegate found that the attorneys’ file management system was unreliable, did not meet the due care requirement of s 223, and that the error was not beyond the control of the attorney. However, the Delegate granted an extension of time under s 223(2)(a), after determining that the legitimate intention of TFH’s attorney to file a Notice of Opposition had been thwarted by the error. The Delegate stated that the public interest in subjecting patent applications to scrutiny outweighed Kelvindale’s interest in avoiding additional expense and delay.
While the extension of time was granted, the decision demonstrates the importance of maintaining appropriate systems to ensure important dates are not missed. It is also an important reminder that failing to take actions or pay fees cannot be considered errors or omissions in themselves.
A copy of the decision can be found here.
