Yang v Vuly Pty Ltd

Wei Yang has applied for an extension of time to appeal a decision made by a Delegate of the Commissioner of Patents. The decision, delivered on 28 February 2020, related to patent applications concerning a frame structure for trampolines. The Delegate determined that Vuly Pty Ltd, not Mr Yang, was the sole person entitled to the inventions claimed in those applications. The Federal Court Rules 2011 (Cth) (FCR) require a notice of appeal to be filed within 21 days of the decision, but Mr Yang filed his application on 20 May 2020, two months late. Mr Yang seeks leave under FCR 34.25 for an extension of time to file his notice of appeal, accompanied by a draft notice of appeal and an affidavit explaining the circumstances of the delay. The key legal issue before the Court is whether Mr Yang's two-month delay in filing his notice of appeal, due to an innocent mistake, justifies granting an extension of time. The Court must consider the nature of the appeal, the cause of the delay, and whether there has been any prejudice to the respondent, Vuly Pty Ltd.

In deciding the application, the Court noted that Mr Yang's solicitor, Xiao Sandy Zhang, had made an innocent mistake regarding the deadline for filing the notice of appeal. Mr Zhang had read the decision and mistakenly believed that there was a two-month extension for Vuly to provide further information, which led him to delay filing the notice of appeal. The Court also noted that Vuly and the Commissioner of Patents had not opposed the grant of an extension, and that the appeal would be conducted as a hearing de novo, with Vuly being the effective moving party. Given these factors, the Court concluded that Mr Yang's delay was due to an innocent mistake, there was no prejudice to Vuly, and the appeal would proceed as a hearing de novo, the Court granted the application for an extension of time. The Court ordered that Mr Yang have leave to appeal in the form of the draft Notice of Appeal filed on 20 May 2020 and that Mr Yang pay the costs of the application.