This is an appeal of a judgment dismissing an application for a judicial review of a decision of the Commissioner of Patents. The appellant appointed a law firm as its patent agent. The law firm paid maintenance fees for the first two years but did not pay the third anniversary payment in time. The application was deemed abandoned. However, before a year was up, a new law firm sent two letters to the Commissioner of Patents. The first letter requested reinstatement pursuant to Section 73(3) and included the reinstatement fee and the third maintenance fee. The second letter submitted the fourth maintenance fee. The Commissioner acknowledged receipt of the fees, however, advised that the fee to maintain an application can only be paid by the authorized correspondent for a particular application. An executed Appointment of Agent was submitted, but after the period for reinstatement had passed. The Commissioner advised the new law firm that the application had been abandoned and could not be reinstated. Judicial review was sought of this decision.
The Federal Court dismissed the application for judicial review. The Court of Appeal upheld that ruling. The Court of Appeal held that the Patent Rules effectively prohibit the Commissioner from dealing with anyone other than the authorized correspondent for the application. The Court held that to accept the appellants submission that it intended to appoint the new agents, requires that the definition of an “authorized agent” be read out of the rules. This would create the very uncertainty which the definition seeks to eliminate. The Court of Appeal dismissed the appellant’s arguments based on equity, holding that equitable relief cannot be invoked to counter the application of a clear statutory rule.