H M REILLY

[1995] APO 48

official notice

decision of a deputy commissioner of patents

Application        :    No. 581416 in the name of H M Reilly

Title:    An improved accurate lightweight metallic lawn and garden weed chipper.

Action:    Request under s.223 to extend the time for paying renewal fees.

Decision:    Issued            .

Abstract:    Patentee bankrupt at the relevant time. No evidence of error or omission from the trustee. Extension refused.

patents act 1990

decision of a deputy commissioner of patents

Re:Patent No. 581416 in the name of H M Reilly, and a request under s.223 to extend the time for paying renewal fees.

background

Patent 581416 was granted on 22 August 1989. A renewal fee became due on 12 October 1991. On 20 March 1992 the patentee wrote to the Commissioner:

"I wish to comply with your requirements for Renewal of this Patent and to retain all Rights to this Patent"

He advised that he did not have the money to pay the renewal fee because of:

-the depressed state of the world economy; and/or

-being "presently placed under extreme financial pressure by the actions of other persons or Corporations, by the fraudulent use of the Judicial process and the issue of fraudulent documentation".

Subsequently the patentee has filed substantial correspondence in support of his request. In essence, the patentee became bankrupt on 3 May 1991; the patentee passionately believes that his bankruptcy should not have occurred; and that the circumstances surrounding his bankruptcy justify him being granted an extension of time to pay the renewal fee due in October 1991. I note that Mr Reilly was apparently discharged from bankruptcy on 2 August 1994.

Following extensive correspondence, the matter was set for hearing on 16 August 1995. By letter filed on 9 August Mr Reilly indicated that he would not be appearing or paying the hearing fee - and he did not appear.

decision

The patentee's submissions are largely focussed on alleged iniquities with his bankruptcy and associated judicial proceedings. However the Commissioner has no power or authority whatsoever to investigate the circumstances of his bankruptcy or the judicial proceedings.

For an extension of time under s.223 to be granted, I must find that a relevant error or omission has occurred, or that there have been circumstances beyond the control of the relevant person, which prevented the timely payment of the renewal fee.

There is an initial question of whether Mr Reilly, being a bankrupt at the time the present request was filed, was in fact entitled to make the request; I doubt that under Bankruptcy law he was so entitled. There is a further question of whether the patent was assigned to a Mr Colin Daley; if an agreement dated 21 December 1986 is effective, ownership of the invention was transferred to Mr Daley upon Mr Reilly being declared bankrupt - in which case Mr Daley is the person who should have made the request. For these reasons I doubt that Mr Reilly is entitled to make the present request - but I am prepared to consider the request on the assumption that he was entitled to make the request.

Where a person is made bankrupt, their affairs are vested in a trustee. From the date of being made bankrupt until the last date the renewal fee due 12 Oct. 1991 could be paid (12 April 1992), the trustee carried the responsibility for paying the due renewal fee. Mr Reilly was invited to provide material from the trustee to establish an error or omission on the part of the trustee - but no such material has been provided. Indeed the copies of correspondence provided are consistent with a deliberate decision by the trustee not to pay any fees - assuming that the trustee in fact knew of the patent at the relevant time. Further, if the invention had been lawfully assigned to Mr Daley effective upon Mr Reilly becoming bankrupt, then Mr Daley was the person responsible for paying the renewal fee - but there is no evidence of any error or omission on the part of Mr Daley relating to the non-payment of the renewal fee. Consequently there is no evidence of a relevant error or omission to enliven the provisions of s.223(2)(a).

With regard to circumstances beyond the control of the patentee [s.223(2)(b)]; it is well established that this provision is a force majeure provision. Becoming a bankrupt is not a circumstance beyond the control of the person - at least not
in the sense required by s.223.

I am therefore unable to identify anything in the material supplied by Mr Reilly which in any way enlivens the provisions of s.223. Consequently I must refuse his request for an extension of time under s.223 to pay the renewal fee.

D. Herald
Deputy Commissioner of Patents