Has your British Patent lapsed through failure to pay the renewal fee with surcharge by the end of the six-month grace period? It may not necessarily be game over yet.
As set out by Section 28 of the UK Patents Act 1977, a lapsed British patent can be restored by submitting an application for restoration and paying an official fee to the UK Intellectual Property Office (UKIPO). The application for restoration needs to include an explanation as to why the deadline was unintentionally missed. Lack of funds is not generally considered to be enough to demonstrate that missing the deadline was unintentional. On the other hand, demonstrating that the patentee instructed the renewal of their patent, but a procedural error or miscommunication prevented the renewal fee from being paid, is more likely to convince the UKIPO that missing the deadline was unintentional. The explanation also needs to be supported by evidence.
If the UKIPO is satisfied that the deadline was missed unintentionally, the patentee will be invited to pay the missing renewal fee before the patent is restored.
The application for restoration needs to be submitted within 13 months of the end of the grace period, but don’t delay! Third party rights can arise for any third party who, in good faith, started between the end of the grace period and before publication of the application for restoration to do an act that would be considered infringing, had the patent been in force.
If you need help with restoring a lapsed British patent, please feel free to get in touch.
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