TransLang Technology Ltd v Twister B.V. [2011] APO 70 (6 September 2011)
Opposition – request for extension of time to serve Statement of Grounds and Particulars – delay in postal delivery – whether ‘all due care’ taken – whether ‘circumstances beyond control’ – whether ‘error or omission’
In this recent Patent Office decision, Delegate Dr S.D. Barker was required to consider a delay by the opponent, Twister B.V., in serving a Statement of Grounds and Particulars of opposition upon applicant TransLang Technology Ltd, which arose due to slow delivery by Australia Post. Specifically, the Statement was mailed by the opponent’s attorneys from the Sydney CBD on Wednesday, 6 April 2011, in order to meet a deadline for service upon the applicant – whose attorneys were also located in the Sydney CBD, about three blocks away – of Thursday, 7 April 2011.
The delivery in fact took three business days, arriving on Monday, 11 April 2011, four days after the deadline.
These facts, which were set out in a Statutory Declaration made by Twister’s attorney, were not in dispute. What the Delegate had to determine was whether they provide a basis for grant of an extension of time for service of the Statement, and on what grounds.
The opponent’s attorney argued that an extension should be granted because the delay had occurred despite all due care on his part. However, the Delegate determined that assuming next-day delivery did not constitute the requisite standard of care. The extension was granted nonetheless, on the alternative basis that it was a relevant ‘error’ on the part of the attorney to rely upon Australia Post to deliver an article the next day within the same metropolitan area.
Opposition – request for extension of time to serve Statement of Grounds and Particulars – delay in postal delivery – whether ‘all due care’ taken – whether ‘circumstances beyond control’ – whether ‘error or omission’
In this recent Patent Office decision, Delegate Dr S.D. Barker was required to consider a delay by the opponent, Twister B.V., in serving a Statement of Grounds and Particulars of opposition upon applicant TransLang Technology Ltd, which arose due to slow delivery by Australia Post. Specifically, the Statement was mailed by the opponent’s attorneys from the Sydney CBD on Wednesday, 6 April 2011, in order to meet a deadline for service upon the applicant – whose attorneys were also located in the Sydney CBD, about three blocks away – of Thursday, 7 April 2011.The delivery in fact took three business days, arriving on Monday, 11 April 2011, four days after the deadline.
These facts, which were set out in a Statutory Declaration made by Twister’s attorney, were not in dispute. What the Delegate had to determine was whether they provide a basis for grant of an extension of time for service of the Statement, and on what grounds.
The opponent’s attorney argued that an extension should be granted because the delay had occurred despite all due care on his part. However, the Delegate determined that assuming next-day delivery did not constitute the requisite standard of care. The extension was granted nonetheless, on the alternative basis that it was a relevant ‘error’ on the part of the attorney to rely upon Australia Post to deliver an article the next day within the same metropolitan area.
