As discussed in a previous blog, Australian patent law permits many deadlines to be extended in the event that a critical date is missed. Provided that an applicant or patentee can show that the deadline was missed due to an error or omission or circumstances beyond their control, relatively long extensions may be granted.
Australia’s High Court recently permitted a patentee to extend a missed deadline for about 10 years, from 26 July 1999 to 12 June 2009 (click here for a link). In this case, it was the deadline to request a pharmaceutical extension of the patent term that had been missed.
Interestingly, even though the extension of time request was allowed (resulting in an extension of patent term), by the time the High Court had handed down its decision the patent (with the extended patent term) had been expired for about 2 years.
The High Court decision centered around the interpretation of one patent regulation, regulation 22.11(4)(b), and whether or not this regulation means that: (i) it is not possible to extend the deadline for requesting a pharmaceutical extension of patent term at all; or (ii) it is only not possible to extend the deadline for requesting a pharmaceutical extension of patent term after the patent has expired.
Three of the High Court judges favoured interpretation (ii), and two of the judges favoured interpretation (i). In view of the circumstances of this case, the extension of term request was therefore allowed.