IPA patent 7.11.1.3.3-section-2232b---circumstances-beyond-control — IP Australia Patent Manual of Practice and Procedure – 7.11.1.3.3 Section 223(2)(b) - Circumstances Beyond Control

Also in this Chapter: 7.11.1.3.1 The Law 7.11.1.3.2 Subsection 223(2)(a) - Error or Omission ​​​​​​​ 7.11.1.3.4 Filing a Request under Subsection 223(2) 7.11.1.3.5 The Commissioner's Discretion Key Legislation: Patents Act: s223 Extensions of time In this topic: Overview Force majeure Actions of an agent or employee Lack of funds Postal delays Sickness or accident Awaiting a court judgement ​​​​​​​ Overview The meaning of the words "circumstances beyond the control of the person concerned" in section 223(2)(b) has been interpreted from the following cases: Michigan Technological University Board of Control v. Deputy Commissioner a. High Court - (1982) 40 ALR 577, (1982) 52 AOJP 1998 b. Federal Court – [1981] FCA 39 ; (1981) 34 ALR 529 c. AAT - (1982) 52 AOJP 199 Atomic Skifabrik Alois Rohrmoser v. Registrar of Trade Marks [1987] FCA 22 ; 7 IPR 551, (1987) AIPC 90-365 Abbott & Lamb Pty Ltd v. Registrar of Trade Marks [1991] AATA 441 ; (1991) AIPC 90-806 Jiejing Pty Ltd v Commissioner of Patents and Ron Thomas and Allan Garnham [1995] AATA 100 ; 1995 AIPC 91-144 Solar Mesh Pty Ltd v Commissioner of Patents [1995] AATA 101 ; (1995) AIPC 91-138 The principles arising from these cases and others are summarised below. Force majeure Section 223(2)(b) is a "force majeure" provision, where the failure to perform the relevant act is outside the control of the person concerned and something that could not have been avoided by that person's exercise of due care. Actions of an agent or employee The actions of an attorney, agent or employees are not considered to be beyond the control of a person. The Courts consider that the applicant or patentee "stands in the shoes of his agent", to the extent that errors or omissions made by the agent (or by the agent's employees) are attributed also to the applicant. "Employee" here means a direct employee and not an intermediary such as a courier or a postal authority (see “Postal delays” below). Lack of funds Becoming bankrupt is not a circumstance beyond a person’s control within the meaning of section 223 . A sequestration order is made as the culmination of a sequence of events which the applicant could have avoided by the exercise of due care. Similarly, a lack of funds is not considered to be a circumstance beyond a person's control. ( Vrubel v Upham (1996) 36 IPR 220) Postal delays Delays by post and courier are generally circumstances beyond a person’s control, and historically have constituted the major source of extensions under section 223(2)(b) . Sickness or accident In some situations sickness or accident may satisfy the requirement of section 223(2)(b) , for example if an applicant prosecuting his or her own case becomes ill, and is unable to rely on another person to carry out the relevant act, they will be entitled to an extension. Alternatively, if a technical assistant to a firm of Attorneys missed a time limit owing to an illness, it would be expected that the firm would have made arrangements accordingly, in anticipation of this kind of occurrence. While and error or omission might be involved ( section 223(2)(a) ), circumstances beyond control would not. Awaiting a court judgement Anticipation of a Court judgement has been held to be a circumstance beyond a person's control (see Jiejing Pty Ltd v Commissioner of Patents and Ron Thomas and Allan Garnham [1995] AATA 100 at [105]).