Another problem with dates

Working in patent practice requires, among other things, a keen eye for due dates. Getting a due date wrong by just one day can make a big difference. This can sometimes make all the difference for a patent application, as a recent example I wrote about here demonstrated. There are many other instances of critical due dates under the UK Patents Act and Rules where it is very important to know when a particular period ends. 

I wrote a long while ago about a decision from the UK IPO (Rigcool v Optima Solutions), in which the issue was about how to calculate the end of "a period of two years beginning with the date of grant" under Section 37(5) (as it was then worded), in relation to when proceedings for entitlement could be commenced for a granted patent. Did the period end on the day of the anniversary of grant or the day before? Following reasoning derived from how the term of a patent under Section 20 is calculated, this was determined to be the latter, i.e. the last day on which entitlement proceedings could be initiated was the day before the anniversary. This turned out to be very important in the case in question, since the claimant had filed on the anniversary of the date of grant, which was determined on this basis to be one day too late. 

Following that case, some amendments were made to the Patents Act and Rules by The Patents (Amendment) Rules 2011 (SI 2011 No. 2052) and the Intellectual Property Act 2014, which adjusted the wording used in various places in the Rules and Act respectively to clarify that any periods specified were supposed to end on the anniversary and not the day before. One example in the Rules was the period under Rule 32 for making a request for reinstatement of an application. This was one of the periods that was previously specified as being "beginning with", which was then changed to "beginning immediately after". The relevant period under Rule 32 was then defined as "twelve months beginning immediately after the date on which the application was terminated". The situation was then made clear that the period would end on the anniversary and not the day before. Or so we may have thought. 

In a recent judgment from the High Court in Ahmad v Comptroller-General of Patents, Designs and Trade Marks [2025] EWHC 936 (Pat), Mr Justice Mellor decided on an appeal by the claimant Mr Ahmad in relation to his patent application, which had been refused by the UK IPO in 2021. Mr Ahmad made various accusations and complaints about being badly treated by the UK IPO, accusing the Office of "malicious comments that are illegal and against all the guidelines with lots of fraud", among other things. It was fairly clear that Mr Ahmad, who was self-represented, was not particularly familiar with the usual way of prosecuting patent applications in the UK and was somewhat chaotic and unreasonable in his dealings with the UK IPO. Faced with Mr Ahmad's numerous failings and utterly hopeless arguments, Mellor J had no difficulty in striking out his claim by summary judgment, finding Mr Ahmad's claims to be totally without merit. One of the points raised was whether Mr Ahmad could have requested reinstatement of his application, which he failed to do. This was certainly not a deciding factor in the case, but Mellor J noted what the due date for making such a request would have been, calculating it in the following way: 

"The termination of the application was effective on 31 August 2021 (one day after the two month extension window elapsed following 30 June 2021). By operation of r. 32 (under s.20A) the applicant is then given a generous, but fixed, deadline within which to seek reinstatement. In Mr Ahmad's case, it was a deadline of 31 August 2022: twelve months after the application was terminated on 30 August 2021. That period is set by r. 32(1) and –(2) PR07, and is not extendable: see r. 108(1) PR07 and its Sch. 4 Part 1" (paragraph 50, emphasis in the original).

The letter from the UK IPO that started the period for requesting reinstatement referred to the application not being in order for grant on 30 August 2021, indicating that it was treated as having been refused on that date. The period under Rule 32(2) was therefore defined based on this date, being the date on which the application was terminated. Mellor J calculated, however, that the final date on which a request for reinstatement could be made would be 31 August 2022. Given all the history behind why the particular wording of Rule 32(2) as it now stands was arrived at, this seems to be wrong. The correct due date should actually have been 30 August 2022. It made no difference in that case but it is slightly concerning that a High Court judge can get this wrong. Perhaps the wording currently used is not as clear as we might think.