7.11.1.4 Subsection 223(2A) - Despite Due Care

Also in this Chapter:

• 7.11.1.1 Relevant Act
• 7.11.1.2 Subsection 223(1) - Office Error
• 7.11.1.3 Subsection 223(2) - Error or Omission and Circumstances Beyond Control
• 7.11.1.5 Common Deficiencies in Requests under Section 223(2) or (2A)
• 7.11.1.6 Advertising an Extension - Subsection 223(4)
• 7.11.1.7 Extension of Time for an Extension of Term
• 7.11.1.8 Grace Period Extensions
• 7.11.1.9 Extension of Time to Gain Acceptance
• 7.11.1.10 Examination Report Delayed or Not Received
• 7.11.1.11 Co-pending Section 104 Application - Budapest Treaty Details
• 7.11.1.12 Payment of Continuation or Renewal Fees Pending a Section 223 Applicaiton
• 7.11.1.13 Person Concerned: Change of Ownership
• 7.11.1.14 Date of a Patent Where an Extension of Time is Granted to Claim Priority

Sub-chapters:

• 7.11.1.4.1 Filing a Request under Subsection 223(2A)

Key Legislation:

Patents Act:

• s223 Extensions of Time

Patents Regulations:

• reg 22.11 Extension of time
• Schedule 7 Fees

Section 223(2A) is as follows:

(2A) If:

(a) a relevant act that is required to be done within a certain time is not done within that time; and

(b) the Commissioner is satisfied, on the balance of probabilities, that the person concerned took due care, as required in the circumstances, to ensure the doing of an act within that time;

the Commissioner must, on application made by the person concerned in accordance with the regulations and within the prescribed period, extend the time for doing the act.

Under section 223(2B), 223(3A) and reg 22.11(1D):

• the time for doing a relevant act can only be extended under section 223(2A) after the time period has expired;
• the request under section 223(2A) must be filed within two months after the circumstances that prevented the person from doing the relevant act within the time required, ceases to exist; and
• the maximum extension available under section 223(2A) is 12 months after the end of the time within which the act is required to be done.

The fee for an extension of time under section 223(2A) can be found at Schedule 7, item 228.

Unlike section 223(2), once grounds under section 223(2A) have been established, there is no discretionary power to be exercised.

Although the fees are the same, section 223(2A) is of narrower scope than the provisions of section 223(2)(a), and will only be applicable in limited circumstances.  Extensions of time under section 223(2A) would only arise where the person concerned had appropriate systems in place and did everything that could reasonably be expected to ensure the relevant act was done and despite that, a relevant act was not done in time.  

A reasonable enquiry is whether the systems or mechanisms put in place were appropriate to ensure the relevant act was performed in time.  If the person concerned did not have adequate systems in place or had not done everything reasonably possible to ensure the relevant act was done in time, an extension under section 223(2A) would not be appropriate.