In the recent Patent Office decision of Reflex Instruments Asia Pacific Pty Ltd v Minnovare Limited [2016] APO 68, the Delegate found that an administrative error leading to missing the deadline for filing evidence in answer in an innovation patent opposition did not constitute exceptional circumstances that warranted an extension of time.

Regulation 5.9 (b) of the Patents Regulations as amended on 15 April 2013 provides that the Commissioner may extend the period of time if the Commissioner is satisfied that there are exceptional circumstances that warrant the extension.

IP Australia sent a Notice to the patent applicant’s attorneys providing the notice of opposition, statement of grounds and particulars and the evidence in support and advising of the deadline for evidence in answer. The Notice was received by the office for the applicant’s attorneys and entered into its computerised document filing system. The normal practice was then to print a copy of the Notice and enter information into an internal docketing and attorney notification procedure. However, this step did not occur. As a consequence, the attorney responsible for the matter and the patent applicant were not informed of the opposition, and evidence preparation did not take place.

The Delegate did not consider this to be exceptional circumstances and did not grant an extension of time. The Delegate stated:

"The failure arose in the normal process of handling an opposition to an innovation patent, rather than outside of the normal evidentiary processes. There is nothing to suggest that the failure was a result of an external event outside the control of Lord & Co, such as a computer system failure, a power failure or the sudden illness of a person. Rather, it appears to have been a human error by a staff member. While I have no doubt the error was unintentional, that is not sufficient to characterise it as an exceptional circumstance."