Given the miserable financial situation that many businesses face at present, failure or inability to renew a patent is an increasingly likely occurrence -- especially for small businesses with tight or non-existent credit lines. Last week's decision in Re Bending Light Ltd  EWHC 59 (Pat), 30 January 2009, a Patents Court (England and Wales) decision of Mr Justice Kitchin which was picked up by Lawtel, is therefore all the more significant.
Bending Light owned a UK patent, the renewal fee for which fell due on 15 September 2004. Sad to say, the renewal fee was not paid by that date; nor was it paid before the end of the statutory grace period. For want of a mere £210 the patent lapsed fatally on 15 March 2005.
At this point Bending Light applied for restoration of the patent -- a merciful provision contained in Section 28(3) of the Patents Act 1977 which reads:
"If the comptroller is satisfied that—(a) the proprietor of the patent took reasonable care to see that any renewal fee was paid within the prescribed period or that that fee and any prescribed additional fee were paid within the six months immediately following the end of that period, the comptroller shall by order restore the patent on payment of any unpaid renewal fee and any prescribed additional fee".At the hearing, it was clear from the evidence that Bending Light did actually have enough cashto renew the patent during the relevant period. However, the company said its financial position during 2005 was dire and that, in March 2005, it had insufficient funds in its business to pay the fees that had fallen due. The hearing officer refused the application for restoration on the basis that the section 28(3) requirements had not been met.
Restoration comedy here