In Carol Almond-Martin v Novo Nordisk Health Care AG [2011] APO 42, the latest section 223 extension of time decision, the Patent Office refused to grant an extension of time of one month because it was unable to identify any error or omission or circumstances beyond the control of the person concerned.

Novo Nordisk sought an extension of 1 month in which to pay the acceptance fee for its patent application.  In its application, Novo Nordisk did not specify whether it was seeking an extension because of an error or omission (s223(2)(a)) or because of circumstances beyond the control of the person concerned (s223(2)(b)).

In May 2010, the Patent Committee at Novo Nordisk elected to abandon the patent application.  Inspicos (who managed Novo Nordisk's portfolio) was informed of this decision in June 2010.     

After the due date for payment of the acceptance fee had passed, Inspicos informed Novo Nordisk that the application had been accepted and had also been opposed but had subsequently lapsed for failure to pay the acceptance fee.  The opposition of the patent application, together with the knowledge that the patent had been accepted, meant that Novo Nordisk now had an interest in maintaining the patent application.  The existence of the opposition indicated that the technology was valuable to a competitor. 

Novo Nordisk sought an extension of time to pay the acceptance fee, however the Delegate was not able to identify an error or omission, or causative circumstances beyond the control of the person concerned, that could enliven the operation of section 223.  In doing so, the Delegate rejected the idea that the failure to know that an opposition would be filed in the future could be an error or omission or circumstances beyond the control of the Applicant.

The failure to pay the acceptance fee was the result of a deliberate decision by Novo Nordisk.  The application for an extension of time was refused.