§ Lord Hodgson of Astley Abbotts
asked Her Majesty's Government:
Why the intent specified in paragraph 2(13) of the Patents Act 1977 (Electronic Communications) Order 2002 (S.I. 2003/512) does not also apply in paragraph 2(6). [HL2764]
§ Lord Sainsbury of Turville:
Subsections (6) and (13) of Section 124A, which is inserted in the Patents Act 1977 by paragraph 2 of Order S.I. 2003 No. 512, deal with electronic communications respectively incoming to and outgoing from the Patent Office. There are several considerations which require these two classes of communication to be treated differently in this order.
For communications coming into the Patent Office, it is frequently the case that their time and date of receipt is critical to the establishment and maintenance of patent rights or to the compliance with time-critical requirements of the patents legislation. This justifies a level of technical precision whereby senders can be 62WA assured that the Patent Office electronic receiving system has operated satisfactorily, and they gain this assurance if they receive an acknowledgement from that system. The Patent Office intends to provide such acknowledgement, and may wish to rely on it to the extent that a delivery cannot be treated as made if the acknowledgement has not been issued. The purpose of Section 124A(6) is specifically to give legal powers to the Comptroller of the Patent Office to make a future direction which places such importance on the acknowledgement, and will thereby provide a safeguard to senders that Patent Office systems are working to the customary high standard.
For outgoing electronic communications from the Patent Office the same criteria do not apply. In striving for legal certainty as to whether such outgoing delivery can be deemed to be effected, the view was taken that the obligations on the office must be limited to properly addressing and transmitting the electronic communication. Satisfactory receipt of these outgoing communications depends, among other things, on the functionality of the various electronic systems installed in different users' offices. It may be that users' systems will provide an acknowledgement of receipt to the Patent Office, but the Patent Office should make no assumptions and should not be entitled to rely on it. Section 124A(13) presents this approach as the default situation, but also allows the comptroller to override that default situation by specifying "contrary intention", should that be appropriate. This wording is based upon the established drafting used in Section 7 of the Interpretation Act 1978 in connection with service by post. This "intention" would be applicable only in the context of outgoing communications from the Patent Office and has no application to the provisions for communications coming into it.