Israel Patent Number IL 214216 titled “SEWAGE FLOW METERING METHOD”to Roberto Cymmerman lapsed due to failure to pay the first renewal. The patent issued on 1 July 2015 and so the deadline for renewal was 1 October 2015. The payment was not paid on time. Nor was it paid during the six month grace period under Section 57 of the Israel Patent Law 1967. The fact that the patent had lapsed had not published.
On 30 May 2016 the Applicant requested reinstatement via legal counsel but a Power of Attorney appointing the legal counsel was only submitted after a ruin from 6 June 2016.
An affidavit from Patent Attorney Yoram Savyon who had previously represented the Applicant was submitted. From the Affidavit it transpired that the firm uses a computerized renewal system that was updated on receipt of the notice of allowance; with a calculation of the anticipated date of grant. Based on this, the final deadline for paying the forthcoming renewal was entered. (Further renewals are derived from the filing date and are entered with the filing of the application).
In this instance, the worker who manages the database did not enter the first renewal (which is based on the issue date), but did enter the subsequent renewal date. That the patent issued was reported by the office manager to the relevant worker and it is not clear why he failed to enter the information.
According to the Affidavit, some two months before the final deadline for paying the second renewal, i.e. in May 2016, the Applicants were informed of the deadline and then it transpired that the first renewal was not paid as the deadline was not entered into the system. The Affidavit also noted that for mistakes of this kind, the worker had already been fired.
Deputy Commissioner Ms Bracha noted that the patent itself was filed on 20 July 2011 and so the deadline for the second renewal (years 6 to 10) was 20 July 2017 and not 2016 as claimed in the Affidavit. This mistake raises eyebrows to some extent with regards to the facts detailed in the Affidavit as to how the mistake was discovered. Nevertheless, the mistake for not paying the fee in a timely manner that was detailed in the Affidavit does fit in with the requirements of Section 60 of the Law and so (intent and due care – MF) and so, provided the fee is paid in a timely manner, Deputy Commissioner Ms Jacqueline Bracha saw fit to allow reinstatement, together with an opportunity to the public to oppose.
Ruling by Ms Jacqueline Bracha concerning reinstatement of IL214216, lapsed due to failure to pay renewal fee, 20 June 2016.
In this case, a human error resulted in failure to insert a date into a spreadsheet or dedicated program by a poorly trained and incompetent clerk who was subsequently fired. In the Colb ruling, hand-written renewal records and a more excusable error were considered a lack of due care. I argued that even computerized systems required data to be correctly entered and extracted. In this case, there seems to be a bug in the system for calculating subsequent renewals in that five years and not six is hard wired into the system (or perhaps the filing date was typed in a year early by mistake?!). There is a second error blamed on the office junior who was righteously fired, but was he/she at fault? The main thing justifying this case being considered due care seems to be the use of a computer system, despite it having a bug and being operated by someone incapable of data entry. I consider this standard of due care to be overly reliant on there being a computerized renewal system in place. Objectively, there were apparently two errors here and no indication that there was any intention to pay the first renewal in a timely manner whereas in the Colb case there was one error.