The Israel PTO only updates its public database once a day, sometime in the wee hours of the morning. I wanted to see if any of last week’s spate of emails (that I discussed here) made it into the electronic file histories of any of the cases, those electronic file histories now being the official record of what transpired in the application. Unsurprisingly, the emails don’t appear. Which means that effectively they’re nullities. So in “Patent D” that I discussed last week, the most recent item in the file history is the letter of November 2, stating that the drop-dead date to pay the renewal fee, with extension, is December 1.
This raises an interesting legal question: it could be argued that the March 1 and November 2 letters constitute constructive grants of extensions of the deadline to pay the renewal fee. But §164(a) of the statute says that although the Registrar (Commissioner) can grant all sorts of extensions, one extension he can’t grant is to the time established in §56 to pay renewal fees. So it can be argued (and no doubt would be argued by the Office) that the six-month deadline is hard and fast, regardless of what the Office has told the patentee. I suppose that a mis-stated date from the Office could be a basis for reviving a patent under §59, but that process in certain circumstances allows third parties to continue to practice the invention even after revival of the patent. Would the Office then potentially be on the hook for damages for mailing a misleading letter? I wouldn’t count on it.
— Dan Feigelson
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