Section 28

Restoration of lapsed patents

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28.-(1) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee, an application for the restoration of the patent may be made to the comptroller within the prescribed period [Rule 40: 13 full months after section 25(4) period].

(1A) Rules prescribing that period may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

(2) An application under this section may be made by the person who was the proprietor of the patent or by any other person who would have been entitled to the patent if it had not ceased to have effect; and where the patent was held by two or more persons jointly, the application may, with the leave of the comptroller, be made by one or more of them without joining the others.

(2A) Notice of the application shall be published by the comptroller in the prescribed manner.

(3) If the comptroller is satisfied that the failure of the proprietor of the patent -

  • (a) to pay the renewal fee within the prescribed period; or
  • (b) to pay that fee and any prescribed additional fee within the period ending with the sixth month after the month in which the prescribed period ended,

was unintentional, the comptroller shall by order restore the patent on payment of any unpaid renewal fee and any prescribed additional fee.

(4) An order under this section may be made subject to such conditions as the comptroller thinks fit (including a condition requiring compliance with any provisions of the rules relating to registration which have not been complied with), and if the proprietor of the patent does not comply with any condition of such an order the comptroller may revoke the order and give such directions consequential on the revocation as he thinks fit.

(5) to (9) [repealed]

Notes:
Manual of Patent Practice
Rule 41: notice sent to proprietor 6 weeks after end of s25(4) extended period.
The s28(3) 'unintentional' test does not apply in respect of any patent which ceased to have effect by virtue of section 25(3) before 1 January 2005, according to Regulation 23 of the Regulatory Reform (Patents) Order 2004, SI 2004 No. 2357, for which the previous 'reasonable care' test applies.
Where the old test applies, financial difficulties are not sufficient to establish that reasonable care was taken to ensure that a renewal fee was paid: Betson Medical, [2010] EWHC 687 (Pat).

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