Opinion Number. 1540


PATENTS Patents: lodgement of specification: expiration of time limited for extension of time: meaning of ‘month’: calendar month: calculation of month from event exclusive of day of event

Key Legislation

Patents Act 1901 ss 30, 38: Patents Regulations 1912: Acts Interpretation Act 1901 ss 26(b), 36(1))

The Commissioner of Patents

The Commissioner of Patents has forwarded to me for advice the following memorandum:

I desire to inform you that the official interpretation of the method followed by this office in calculating the one month’s extension of time allowable under section 38 of the Patents Act has been questioned. The following particulars of an application will explain the position.

  1. Application for patent, No. 7610, accompanied by provisional specification, was filed on 30th May 1932. The nine months prescribed by section 30 of the Act for lodgment of the complete specification expired on 28th February, 1933.
  2. The complete specification was not lodged within the nine months.
  3. On 29th March 1933 the agents for the applicant lodged an application in form C2 of the Patents Regulations 1912 for an extension of time for one month for lodgment of the complete specification, and accompanied the application by a document purporting to be the complete-after-provisional specification.
  4. A letter was sent to the Agents on 6th April informing them that the extended time which might have been granted expired on 28th March and that as no application for extension had been received by that date the application had lapsed. With this letter the document purporting to be the complete-after-provisional specification was returned.
  5. The agents returned the document to this office on 18th April, covered by a letter (copy of which is enclosed) in which they contend that the official method of calculating the extended time allowable is incorrect.

Under section 38 of the Act an applicant may obtain an extension not exceeding one month beyond the expiration of nine months in which to lodge his complete-after-provisional specification.

Messrs Waters’ contention is apparently that an applicant is entitled to claim a total period of ten months from date of lodgment of the application.

The official interpretation has always been that the applicant is entitled to one month’s extension after the expiration of the nine months’ period. The term ‘month’ in section 38 has always been taken to mean ‘calendar month’.

As the question is one of legal interpretation I shall be glad of your opinion.

Section 38 of the Patents Act 1903–1932 is as follows:

38. If a complete specification does not accompany the application it may be lodged within nine months after the date of the application, or within such further time not exceeding altogether one month as the Commissioner in writing allows, but if a complete specification is not so lodged the application shall lapse.

The word ‘month’ is not defined in the Patents Act and must therefore be interpreted in accordance with section 26(b) of the Acts Interpretation Act, viz., ‘month’ shall mean calendar month.

Section 36(1) of the Acts Interpretation Act reads:

36 (1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

It would appear that the effect of this subsection is that 28th February is to be excluded from the reckoning. The ‘month’ would therefore run from and including 1st March.

In my opinion, it was competent for the Commissioner to grant an extension for the whole of March.

[Vol. 26, p. 314]