PA 28A – Effect of order for restoration of patent

Question 1

What does S28A concern

Answer 1

The effect of restoration of a Patent

Question 2

What actions to the patent are valid for a restored patetn

Answer 2

S28A(2)
Anything done in relation to the patent during the period between expiry and restoration is valid

Question 3

When is infringement before restoration still infringement

Answer 3

S28A(3)
Any infringement in that period shall be an infringement IF
a) it was done when renewal during the S25(4) six month grace period was still possible
b) it was a continuation or repetition of an earlier infringement

Question 4

When is infringement before restoration not classified as infringement

Answer 4

S28A(4)
If, AFTER the grace period has expired and BEFORE the notice of application to restore was published, an otherwise infringing act or serious preparation to do so is begun IN GOOD FAITH by a third party, then they MAY CONTINUE TO DO THE ACT, although this is not a transferable licence per se.

Question 5

Who is allowed to work an good faith infringement after restoration

Answer 5

S28A(5)
Persons allowed to work the invention under subsection (4) can also allow partners within their business to work it, BUT
(6) can ONLY assign or bequeath the right as PART OF the business itself

Question 6

When are recipients of infringing products free from repercussions

Answer 6

S28A(6)
There are no repercussions from subsections (4) and (5) (good faith persons allowed to work the invention) on the recipient of a would-be infringing product

Question 7

Does effect of order for restoration of a patent count for crown use

Answer 7

S28A(7)
YES

Question 8

What does “continue” mean for good faith acts before restoration

Answer 8

it suggests significant expansion or divergence from the original act is NOT allowed

Question 9

What should you do if you realise your patent has unintentionally lapsed

Answer 9

Request restoration ASAP to prevent accrual of third party rights