Clerical Error

Date Published

The nature of a "clerical error" was considered fully in R. v The Commissioner of Patents; Ex parte Martin 89 CLR 381. The majority judgement in that case noted that:

"The characteristic of a clerical error is ... that it arises in the mechanical process of writing or transcribing."

Similarly, in Maere's Application (1962) RPC 182 at page 185, the hearing officer said:

"The words 'clerical error' ... mean a mistake made in the course of some mechanical process such as writing or copying as distinct from an error arising, e.g. from lack of knowledge, or wrong information, in the intellectual process of drafting language to express intention."

Therefore, a poor translation from a foreign language is not a clerical error.

An example of a clerical error is where a person either of his or her own volition, or under the instructions of another, intends to write something and by inadvertence either omits to write it or writes something different. Thus, the incomplete revision of a template document in line with instructions has been found to be a clerical error (see BHP Billiton v Cominco Engineering [2009] APO 10).  Clerical errors may also arise without intention, e.g. where a clerk misreads or misunderstands instructions and transcribes or writes the instruction as misread or misunderstood.

Certain errors in a document, on inspection of the document, may suggest a "clerical error", whilst in other circumstances, errors such as errors of omission, may only become apparent in the light of submissions and evidence from the applicant or patentee. Furthermore, in the case of some of these errors, it will not be apparent that the amendment sought would have comprised the matter that should have been present in the first place.

However, an error in reasoning cannot amount to a clerical error (see Austal Ships v Stena Rederi [2009] FCAFC 179 at [25]).

Where the applicant (or patentee) seeks the benefit of sec 102(3) on the basis of a clerical error having been made, the onus is on the applicant to make out an appropriate case for the proposed amendment including proof of the error (The Distillers Co. Ld.'s Application (1953) 70 RPC 221). This will usually require evidence to be filed.