Windward Limited v Comptroller-General of Patents: reinstatement appeal fails after email admission unravels non-receipt claim

The High Court has dismissed an appeal by Windward Limited against a decision of the Comptroller-General of Patents refusing to extend the time limit for putting a patent application in order for grant, after the appellant's own concessions during the hearing undermined its central factual case.

Handing down judgement in Windward Limited v The Comptroller-General of Patents [2026] EWHC 1992 (Ch), Recorder Douglas Campbell KC upheld the earlier finding of Hearing Officer Ms J Pullen, who had ruled that neither rule 107 nor rule 111 of the Patents Rules could be used to extend the deadline, leaving patent application GB2108001.5 refused under section 18(3) of the Patents Act 1977.

The application had missed its compliance date of 5 June 2023 after the appellant's patent agents, Hutchinson IP, failed to respond in time to a second examination report. A discretionary extension request was filed late, and the agents argued that the delay stemmed from non-receipt of instructions from the applicant's Israeli representatives. The examiner rejected that account, noting that a bare assertion of unintentional delay was insufficient and requesting sight of the underlying correspondence.

Matters unravelled further when the IPO's own subsequent letters, dated 16 May, 31 October and 13 December 2023, were said by Hutchinson IP never to have been received, a claim that formed the basis of the rule 111 argument that the failure was attributable to a fault in the communication service. The firm relied on a screenshot from Microsoft Power Automate said to show a pattern of undelivered IPO emails, an argument the Hearing Officer and, on appeal, Recorder Campbell both rejected as failing to establish non-receipt of the specific correspondence in question.

Crucially, at the appeal hearing counsel for Windward conceded, for the first time, that earlier emails from the applicant's Israeli attorney, previously said to have gone unreceived by the agents in November 2022 and March 2023, had in fact reached Hutchinson IP. Recorder Campbell described this as a sensible concession given the evidence, but noted its wider consequence: it exposed as factually inaccurate the representations made to the IPO in earlier correspondence asserting non-receipt. Having found the agent's account on that point unreliable, the court declined to accept uncorroborated assertions regarding non-receipt of the IPO's own communications, a conclusion sufficient on its own to dispose of the appeal.

The judgement draws on Matsushita Electric Industrial Co v Comptroller General of Patents [2008] EWHC 2071 (Pat), applying Mann J's reasoning that a mere assertion of unintentional default cannot suffice to satisfy a statutory decision-maker, since such an approach would render the relevant test meaningless in practice. The court also considered Daihatsu, BL O/234/14, though characterised it as authority only on its own facts rather than establishing any binding principle.

Recorder Campbell rejected a separate ground concerning the IPO's failure to disclose an internal IT report to the appellant's agent before the original hearing, finding this an error of judgement but not an irregularity of procedure within rule 107, since no material prejudice had resulted.

The appeal was dismissed in its entirety.