Windward Limited v The Comptroller-General of Patents

A time limit under rule 111 may be extended only where the failure to do the required act was wholly or mainly attributable to a delay in, or failure of, a communication service. The inquiry is one of causation. It requires a conclusion on the principal cause, not a free-standing balancing exercise. Where the Comptroller must be satisfied of a factual condition, a bare assertion is insufficient; the evidence required varies with the nature and purpose of the inquiry. Rule 107 requires an irregularity or prospective irregularity of procedure. It is not engaged by an error that causes no material prejudice. The absence of general duties on the Patent Office to chase an applicant, or on an applicant to check an online system, does not replace the statutory questions.

Windward Limited v The Comptroller-General of Patents was an appeal from the decision of a Hearing Officer acting for the Comptroller-General dated 3 September 2025 (BL O/0812/25). The application for a patent had not been put in order by the compliance date, and responses and supporting evidence were filed late. The appellant relied principally on rule 111, arguing that the default was wholly or mainly attributable to a failure of electronic communication. It also relied on rule 107 and challenged findings concerning email receipt, monitoring systems and an IT report. The central issue was whether either rule permitted extension of the relevant time limit.

Disposition. The appeal was dismissed. The time limit could not be extended under rules 107 or 111, so the application remained refused or terminated.

1. Further evidence. The application to adduce further evidence from the appellant’s patent agent was refused by reference to Ladd v Marshall [1954] 1 WLR 1489 CA, since the evidence could have been adduced below. Communications whose admission was not opposed were nevertheless considered.
2. Evidence and unintentionality. Matsushita Electric Industrial Co. v Comptroller General of Patents [2008] EWHC 2071 (Pat) concerned restoration under section 28(3) of the Patents Act 1977, rather than rule 111. Its general evidential principle nevertheless applied: where the Comptroller must be satisfied of a fact, a bare assertion is insufficient, and the evidence required depends on the nature and purpose of the inquiry. That justified the examiner’s request for the relevant emails. The court did not need to decide whether those emails established unintentionality.
3. Rule 111. The statutory question was whether the default was wholly or mainly attributable to a communication-service delay or failure. No free-standing duty required the IPO to chase the applicant or the applicant to check IPSUM. The court found no proven communication-service failure: the IPO had sent correspondence to the correct address, the screenshot did not establish non-receipt, and the appellant had admitted receiving earlier instructions which were not actioned. The inaccurate statements about non-receipt also undermined the remaining uncorroborated assertions. That was sufficient to dispose of the appeal.
4. Rule 107 and other arguments. The failure to provide a copy of the IT report was an error of judgment, but not an irregularity within rule 107. The report had been shown at the hearing and no material prejudice was established. A new argument based on rule 108(1), rule 32(1) and Schedule 4 was not entertained because it had not been raised below and was unsupported by a respondent’s notice.
5. Daihatsu. Daihatsu Motor Co Ltd BL O/234/14 was treated as a fact-specific analogy, not as establishing a point of law.

1. High Court (Patents Court)—the appeal was dismissed on 6 August 2026: [2026] EWHC 1992 (Ch) .
2. Comptroller-General of Patents—the Hearing Officer’s decision dated 3 September 2025 (BL O/0812/25) held that the time limit could not be extended under rules 107 or 111.