The following memorandum has been forwarded to me for advice:

I shall be glad if you will furnish an opinion upon the following matter: Sub-section (3) of section 64 of the Patents Act 1903-1909 enables a patentee to apply for an enlargement of the prescribed time for paying the renewal fee on a patent, 'Prescribed time', by the Second Schedule to the Patents Act, meaning 'On the expiration of the 7th year of the period of the patent'.

Sub-section (4) of the above-mentioned section confers power on the Commissioner to enlarge the prescribed time for the payment of the renewal fee.

A patent is dated 1 August 1910. The renewal fee, by the Second Schedule to the Patents Act, is payable on or before 1 August 1917. The renewal fee is paid on 1 November 1917, but without making application for an enlargement of time for three months as provided for by sub-section (3) of section 64 of the Patents Act. Can the patent be renewed provided an enlargement of time for three months for payment of the renewal fee is granted on an application made subsequent to 1 November 1917?

Until application is made, enlargement of time for payment of the renewal fee cannot be granted.

In view of the fact that the renewal fee has been paid within the time specified, if the Commissioner is satisfied that the circumstances justify the grant of enlargement of time, I think that the mere fact that formal application was not received within the time may be regarded as an irregularity in procedure under regulation 147, which the Commissioner may waive.

[Vol. 15, p. 377]