In the recent decision of Aqua HD [2025] APO 2, the Delegate denied a request for an extension of time made by a patent applicant’s trustee, who had been appointed by the court to wind down the company following insolvency proceedings. The Delegate concluded that the trustee failed to demonstrate that any force majeure events were causally linked to the missed deadline, and thus the grounds for requesting an extension under s 223(2)(b) were not established.
A brief timeline of the relevant events is as follows:
- 1 September 2021: Aqua HD’s patent application lapsed due to non-payment of the 5th year continuation fees.
- 6 February 2022: Aqua HD was ordered to wind down, and Advocate Bnayahu Lebel (the Trustee) was appointed.
- 1 March 2022: The six-month grace period for late payment of the continuation fees expired.
At the outset, the Delegate clarified that s 223(2)(b) is a force majeure provision, requiring the ‘person concerned’ to show both the intent to perform the relevant act and that the failure to do so was due to uncontrollable external factors, such as natural disasters or random events affecting daily operations.
It was submitted that the ‘person concerned’ for the extension request was the Trustee and that they are a separate legal person to Aqua HD, the applicant. It was further submitted that the lack of funds due to the Trustee’s ‘inherited financial circumstances’ was the relevant circumstance beyond its control.
The Delegate agreed that the Trustee was the relevant person concerned after their appointment. However, the Delegate considered that the lack of funds pre-dated the appointment of the Trustee and this pre-existing lack of funds, which continued during the trusteeship, did not amount to a force majeure event. Furthermore, as there is no evidence on the Trustee’s intentions prior to the end of the grace period, the Delegate concluded that even if there were any circumstances beyond control, it is not apparent these were causative to the missed deadline.
The Delegate further highlighted that prior to the Trustee’s appointment, Aqua HD would have been the relevant ‘person concerned’. Yet, none of the declarations mentioned any intention of Aqua HD to pay the continuation fee.
The Delegate thus concluded that the missed deadline was not caused by a natural disaster or random activity in the peripheries of daily operation of the Trustee. There simply were no funds to make the required payment due to Aqua HD’s insolvency, and this does not amount to a force majeure event for the purposes of s 223(2)(b).
Key Takeaways:
- To invoke s 223(2)(b), applicants must demonstrate a clear causal connection between a force majeure event and the failure to meet the relevant deadline.
- It is important to show that all relevant person(s) had a genuine intention to act on time and that the failure to meet the deadline was due to the force majeure event.
- A lack of funds of a predecessor in title is unlikely to be considered a force majeure event.
