||All England Reporter
|| All ER (D) 78 (Apr)
|| EWHC 725 (Pat)
||Chancery Division (Patents Court)
||George Hamer (instructed by Langner Parry) for the appellant.
||Colin Birss (instructed by the Treasury Solicitor) for the Comptroller.
||6 April 2006
Patent - Application - Registration - Application to 'rescind' - Approach to be taken by Patent Office - Hearing officer refusing application - Whether hearing officer in error - , s 15 - Patents Rules 1995, SI 1995/2093, r 100.
The effect of rescinding the grant of the patent was to extend the time for applying for a divisional under s15(4) or 15(9) of the . Such a course amounted to the rectification of an irregularity in procedure in or before the Patent Office within r100 of the Patents Rules 1995, SI1995-2093, and was therefore possible only if it was attributable wholly or in part to an error, default or omission on the part of the Patent Office. Once it was accepted that there had been a relevant error, default or omission on the part of the office, the approach to be taken by the hearing officer was to ask whether, had the office done what it should have done, the applicant would have taken the step closed to him in the events which had happened. Once it had been shown that the applicant would not have failed to take the step in question if the office had not been guilty of an error, default or omission, there could be few reasons why the Comptroller's discretion should be exercised against him.
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