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Customer feedback - July - September 2011

Compilation of formal complaints made by our customers during July to September 2011. The complaint received is listed in the first column. Read across the row to find out our response and any additional measures taken.
Formal Complaints Response and additional measures taken
You said, "You have received a preliminary examination report regarding your application. You were very unhappy with the report you had received from us for a number of reasons you disagreed." We explained that the letter did not represent a formal rejection of the application. It was a representation a considered view, based on experience with these types of cases, as to whether the application is likely to comply with the legal requirements for grant. This gives the applicant the opportunity to either withdraw the application for a refund or proceed upon payment of the relevant fees. We also advised that the deadline for the decision on whether to proceed has been extended until 31 August 2011
You said, "You were unhappy that third party observation will be placed on the patent file and available to be viewed by the public if the application carries through to publication." We advised that we should have sent redacted version to the applicant and apologised for not doing this. We also explained that we have a duty of customer service to publish the redacted versions should the case reach publication and also to acknowledge receipt of the observations.
You requested an investigation into practices and alleged corruption in the IPO. We advised that we have tried to explain to you that in the absence of any evidence to support your allegations of corruption or bias against you, we saw no justification for any further investigation to be undertaken into the handling of these proceedings. We now regard the matter as closed. However, we will of course be happy to fully cooperate with any investigation undertaken by the Parliamentary Ombudsman.
You were unhappy as we had mislaid your new Patent application after sending you a filing receipt. On 25 August 2011 you wrote to ask us if any breach of security had occurred and if there had been police involvement. You also provided us with the DHL invoice to resubmit the application so we could refund this cost to you as well as requesting accelerated search. We profusely apologised for the lost documentation and located the documentation after a thorough search of the building. We also outlined the formal procedures for lost documentation. On 16 September 2011 we replied that the police had not become involved and there was no breach of security, simply a misplaced application. We agreed to the refund and acceleration of the search.
You told us on 1 August 2011, "Order of Hearing of Proceedings. I confirm that I have no objection as to whether the invalidity or the opposition proceedings are heard first. However, I do want on record, that the proceedings should be dealt with separately, (albeit consecutively). All of the issues to be discussed regarding, say, the invalidity proceedings should be concluded before we commence on the consolidated opposition proceedings, or vice-versa. Since the attacking party in the invalidity proceedings is my client, I want to ensure that I am, on behalf of my client, allowed to make any observations and comments that I wish to make, the other party should then respond, and I should then be given the right to reply. Only once the Hearing in respect of say, the invalidity proceedings is clearly finalised, should we then move on to, say, the opposition proceedings, wherein the other party has the first right to speak, I have a right then to respond and he has the final right to reply. Therefore, each party's rights of audience at the Hearing are preserved in their entirety. Exclusion of Evidence. Turning to the point that is made last in your letter, that as a preliminary issue at the Hearing, the parties may make submissions regarding the exclusion from the invalidity proceedings of the statements, I do not believe that this is an appropriate forum for a preliminary Hearing, and if a preliminary Hearing must now again be had in respect of this matter, (it was already raised at the Hearing, of 26 May 2011) then surely the Substantive Hearing for the application for invalidity must be deferred. My reasons for stating this is that, the other party made clear at the last Hearing, (26 May 2011) that he did not want to seek leave to adduce further evidence in respect of these proceedings. I had also only dropped my request for security for costs in light of this. If the other party is now given the right to adduce further evidence, I hereby raise again my request for security for costs, which if granted should be paid in full to the Registry before the other party's further evidence is allowed. If, now, at the preliminary Hearing that is being taken on the same date as the main or substantive Hearing, the decision is to allow the Witness Statements, this would unquestionable constitute an abuse process for the following reasons:

1.This matter has already been decided at the preliminary Hearing, at which the other party clearly stated that he did not want to seek leave to adduce further evidence. By simply adducing further evidence anyway, he is seeking to circumvent the proper procedure.

2. If the Witness statements are now allowed, the security for costs is no deterrent because it cannot be paid in advance of the other party's evidence being allowed, unless the substantive hearing is postponed. The other party is seeking to circumvent our request for security for costs, by his stating that he did not want to seek leave to adduce further evidence, and then filing it anyway. It is not in this case any comfort that we have the opportunity for requesting costs awarded off the scale from the other party, because the onus would then be on the applicant to actually enforce that cost award, rather than for the Registry to confirm that the costs have actually been received by them, before this evidence is allowed.

3. The Registry is considered a Court of Competent Jurisdiction with reference to invalidation proceedings. The onus is on Court of Competent Jurisdiction to ensure, that its decisions are legally certain. Clearly, changing procedures or allowing a clear and possibly deliberate abuse of process by the other party in this case, or to depart from its published practice, to the detriment of the applicant would result in an uncertain decision.

4. Rule 42 states that the Registrar shall set the deadlines for filing evidence in invalidation proceedings, as he sees fit. TPN Practice Notice 3 (2008) sets out the manner in which the Registrar has seen fit to set those deadlines, and this, we believe, is the current published practice. If it is not, please revert to me advising what is. Assuming that it is the current published practice of the Registrar, the applicant for invalidity has the final right to reply. Therefore, we require clarification, in good time before the deadline for submitting skeleton arguments, that should the decision at the preliminary Hearing be that the Witness Statements of the opposition, are to be allowed, that the substantive Hearing in respect of these invalidity proceedings will not go ahead on the same day.

5. By way of explanation, in accordance with Rule 42 and as set out in TPN Notice 3/2008, the applicant is response to the filing of the Form TM8, is permitted to file evidence in support of the grounds for which the application is made... "Time allowed for the registered proprietor to file evidence or written submissions to the applicant's evidence will usually mirror the period specified for the applicant to file its evidence". Two months will usually be allowed for the applicant to "file any evidence - in-reply or written submissions to the registered proprietor's evidence or submissions". Therefore, if the other party is given leave to adduce further evidence, which the witness statements constitute, the applicant must be given a further two months in which to respond to that evidence, which if this evidence is allowed at the substantive Hearing, it will not have been given.

6. To deny the applicant the right to reply to any additional evidence adduced by the registered proprietor in these invalidity proceedings, would be yet a further abuse of process, would be prejudicial to the applicant for invalidation, would be inequitable, would result in the applicant having been given no fair warning that the evidence may be allowed, and thus no opportunity whatsoever to challenge it. It would thus constitute a clear basis for appeal of any substantive decision made. Please respond on the points made under this heading in advance of the deadline for filing the Skeleton Arguments.

1. Skeleton Arguments of the other party. The other party has maintained that he has sent copies of his Skeleton Arguments to me. I maintain that he has not, and that I am not in receipt of them. At his own insistence at the Hearing held on 26 May 2011, the other party asked that all correspondence be sent by email, where possible. He has not e-mailed the Skeleton Arguments as an attachment and sent them to the Registry, whilst at the same copying me. Until he does so, or until I confirm by email copying the other party that I am in receipt of them, or until the other party provides any other proof that he has sent them to me, please put on record that he has not sent me a copy of his Skeleton Arguments. I will provide by email, by 14:00 8 August in accordance with the deadlines set, my Skeleton Arguments by email, copying the other party, as agreed." On the 2 August 2011 you replied, "I refer to our telephone conversation earlier today and I confirm that I require a substantive response to my request as set out in my letter of 1 August 2011, in writing in good time prior to 8 August 2011. I require written confirmation that I will receive such a response by close of business today. For the avoidance of doubt, I do not consider that it is acceptable for the Registry to take the view that if the other parties further evidence is allowed at the preliminary Hearing, that I may also at the preliminary Hearing make an application to request an opportunity to respond to it. Instead, I contend that this matter should be resolved in good time before the Hearing. In particular, I contend that I should receive in writing, confirmation that if the other parties additional evidence comprising the amended Witness Statements, are allowed to be entered into the proceedings, the substantive Hearing for the application for invalidity will be postponed to give the applicant an opportunity to formally reply to that additional evidence. Furthermore, I wish to put on record, that if the said Witness Statements are allowed, we shall again be making a request for security for costs at the preliminary Hearing. I wish to add that we are concerned that these proceedings are being handled in a manner that appears to completely disregard the Registry's own published practices. If practices are not adhered to and if, for example, we do not receive the response requested, then we have no choice but to lodge a complaint." On the 2 August 2011 you further replied, "As you are no doubt aware, we consider the below response to our e-mail of today's date to be unsatisfactory. Why would the Hearing Officers leave communicating the contents of his letter of 29 July 2011 until that date, when we presume he was aware that he would be out of the office from that date until the deadline of 8 August 2011 for lodging the Skeleton Arguments for the matters at issue? We understand that he had been aware that the other party had complained about the exclusion of the additional evidence contained in the Witness Statements for a number of weeks before his letter. We require full written responses to our letter of 1 August 2011, and to our e-mail of 2 August 2011 addressed to you, regarding our serious concerns that the Registry is not following its own published practices. We do not believe it is good enough to refuse to respond on the basis that the Hearing Officer is unavailable. Another Hearing Officer should be able to pick this up in his absence. Furthermore, we consider the other party amending the Witness Statements, by including additional matter, as a deliberate intent to circumvent the Registry's own procedures, thus making a mockery of the said procedures, because he specifically, during the preliminary Hearing of 26 May 2011, stated that he did not want to adduce further evidence. He has now done so anyway and the Registry are now again considering this request to adduce further evidence without security for costs and without confirming in writing, in good time, that the applicant's right to reply will be preserved. The other parties’ actions amount to a clear abuse of process. We request that the Registry ensure it follows its own procedures to the letter, to preclude the possibility of an appeal on the basis of abuse of process. We look forward to receiving your response." On the 5 August 2011 you responded, "Our complaint was, that the Hearing Officer, presumably knew that he would be out of the office until 8 August 2011, when he sent his letter of 29 July 2011 and that he knew that the other party had objected to the exclusion of his evidence well before 29 July 2011, but nevertheless delayed writing to us until 29 July 2011 such that he was unable to respond to the points raised in our letter of 1 August 2011 until the deadline for filing Skeleton Arguments. My letter of 1 August 2011 raises points that require clarification on the Registry's published practices. We explained in our complaint why we were so concerned, which we maintain, but the complaint was about the timing, and the fact that despite our request, no other hearing officer would provide us with the clarification requested ie a response to our letter of 1 August 2011. There was no use of the complaints procedure to decide matters that should be pursued as part of tribunal hearing, since requesting a response to my letter of 1 August 2011 in advance of the deadline of 8 August 2011, is not, as far as I am aware a matter to be pursued at a tribunal hearing. I look forward to receiving a response the complaint that was made. Kindly ensure that my response is put on record."

You said, "I would like the chief executive to read over the interim decision issue in October 2010. The case presented on behalf of the company as the European Trade Marks applied by them that were opposed and denied were being appealed against. This in fact has already been in process for a number of years. For the hearing officer on those grounds to not rule against them is like saying when the sun shines I will find in your favour of them otherwise I shall hold it all in limbo until it does. Of course there were murmurings that the hearing officer was soon to retire. And why did the hearing officer make mention of this. Suggesting perhaps a contribution to his retirement fund. The decision is very questionable and is not dealing with the matter unbiased. Based on the evidence the hearing officer should have found in favour of myself. I am asking you to review this case as I think the decision is open to investigation if need be on ministerial, government level."

You told us, "Dear Civil Servant. Thank you for your speedy response. I am not a qualified barrister (i am a trainee). Please seek independent legal advice. I believe that I have nothing to lose if I sue UKIPO. I have two grounds on which I can sue UKIPO in a competent court.

1) Failure for UKIPO to investigate my complaint and concerns in connection with Patent renewal guidelines (in particular ability to pay for Patent renewal in small installment over say a couple of months)

2) Failure by UKIPO in dealing with my accusation of breach of contract in relation to Patent administration.

3) Respect of my human rights. Right to enjoyment of property. Now all the above points have detailed legal points of law. I intend to sue in international jurisdiction (also UK). You will find that Patent law is mainly international in scope and detail. Patent ownership is linked to economic progress. Value of Patent could be in excess of £1 billion based on use and products created. I am already in touch with phone manufacturers about 10 already with licensing agreement of £1 million for one year to manufacture limited phones. Please note this is a slam dunk case for me. UKIPO is a formidable organisation with great powers, but limited responsibility it seems. Your organisation must now think about whether my case would succeed. I think it would. But then I am biased. Try and track all past communication with UKIPO relating to this matter. I am not doing anything else, except legal action. I am now a trainee barrister; I have informed UK bar council of intent to study to become a barrister. Suing UKIPO would cost me virtually nothing. It is a public interest matter. It would be down to making it possible for Patent owners to pay in small amounts over time to make deadline of Patent renewal dates! Put it this way, no phone company can make fan for phone in my Patent without paying me royalties. Patent limit of 25 years has not yet lapsed. Issue of lapsed by non renewal fee is yet to be dealt with by competent court. Yours sincerely."
On the 2 August 2011 we replied, "Thank you for your email. The Hearing Officer is on leave until Monday 8 August, we will therefore not respond to your points until then." On the 2 August 2011 we replied, "We re-iterated who the Hearing Officer is and he has given the direction that the Hearing will take place on Wednesday 10 August 2011. Submissions regarding the exclusion from the invalidation proceedings of the statements will be dealt with as a preliminary point at the Hearing. I will pass your emails to the Hearing Officer on his return to the office on Monday 8 August." On the 5 August 2011 we responded, "Thank you for your recent e-mail. I have reviewed the issues you raised and I am satisfied that the Trade mark Registry is following the correct procedures. We cannot use administrative complaint procedures to decide things that should be pursued as part of the tribunal hearing. As you recognise in your complaint, if after the Hearing Officer's final decision your client feels aggrieved by the outcome, there is a right of an inter partes appeal." On the 8 August 2011 we further replied, "Following our phone discussion on Friday, I undertook to investigate further your recent correspondence with my staff. I have now done so. Here is the situation as I see it. I acknowledge that your Box 49 complaint of 2 August did ask for a substantive response to your letter of 1 August, but it also rehearsed again some of the points raised in your letter. As a result we took it as an attempt to resolve these points through the administrative complaints procedure. I do not think it unreasonable that in response to your letter of 1 August we promised that the Hearing Officer would look at your communications on his return to the office today. The Tribunal receives c.1500 incoming letters and forms per month, not counting emails. We cannot give everyone instant answers, and certainly not where we have assessed that an instant response is not required. You asked for certainty on how hypothetical situations will be dealt with ahead of the hearing. We cannot provide these. In the event that the Hearing Officer reverses his decision to exclude some of the other parties’ evidence, then you will have the opportunity to explain to the Hearing Officer why an adjournment would then be necessary and what use you would make of it. The other party would also have an opportunity to make submissions on the effect of an adjournment on him. Only after this process would a decision on adjournment be made. Dealing with this situation in this way (or indeed other ways) is provided for in paragraph 24 of TPN 2/2010. TPN 3/2008 that you refer to has long since been superseded. Paragraphs 17, 18 and 19, of TPN 2/2010 give some guidance on the periods to submit and reply to evidence. But they refer to initial evidence rounds that we now regard as having been completed. If the Hearing Officer reverses his decision to exclude some of the other parties evidence then we recognise that you may also request a number of other things (e.g. for cross-examination or the security of costs). The Hearing Officer will respond to these requests if and as they arise. We see no reason to engage in a fruitless round of discussion on how the Office might respond in this or that hypothetical situation. We suggest that you now prepare for the hearing which will take place later this month. Having now thoroughly acquainted myself with the recent correspondence on this case and your recent dealings with Registry staff, I believe we have acted appropriately. But I feel compelled to make the following point about your behaviour. If you adopted a calmer and more professional disposition when conversing with my staff it will help ensure that we can quickly identify and deal with any valid points you make, and any legitimate questions you ask. There is a risk that such points and questions may be lost as we struggle to deal with your less accurate points, lengthy speculation about our practice, assertions, and (at some points) uncontrolled emotional behaviour. I have copied this email to the Head of your Trade Mark department which should be seen as a signal of the importance I give to this last remark."
You said, "I would like the chief executive to read over the interim decision issue in October 2010. The case presented on behalf of the company as the European Trade Marks applied by them that were opposed and denied were being appealed against. This in fact has already been in process for a number of years. For the hearing officer on those grounds to not rule against them is like saying when the sun shines I will find in your favour of them otherwise I shall hold it all in limbo until it does. Of course there were murmurings that the hearing officer was soon to retire. And why did the hearing officer make mention of this. Suggesting perhaps a contribution to his retirement fund. The decision is very questionable and is not dealing with the matter unbiased. Based on the evidence the hearing officer should have found in favour of myself. I am asking you to review this case as I think the decision is open to investigation if need be on ministerial, government level." We replied, "Thank you for your email of 17 August. I have looked into the issues you have raised. It is my understanding that once the cancellation proceedings currently before OHIM are resolved, the Hearing Officer will issue his final decision on this case. At that point, if you still wish to challenge the Hearing Officer's decision, you will have the right of appeal to either the Appointed Person, who is appointed by the Ministry of Justice and therefore independent of the IPO, or directly to the High Court. The Hearing Officer's decision can only be challenged at the appropriate time through the established and independent appeal procedure. It is not therefore for me to set aside the Hearing Officer's decision. Needless to say, I do not believe there is any evidence for the implication in your email that any of our Hearing Officers would be susceptible to bribery. Such charges are extremely serious and should not be made without solid evidence."
You told us, "Dear Civil Servant. Thank you for your speedy response. I am not a qualified barrister (i am a trainee). Please seek independent legal advice. I believe that I have nothing to lose if I sue UKIPO. I have two grounds on which I can sue UKIPO in a competent court.

1) Failure for UKIPO to investigate my complaint and concerns in connection with Patent renewal guidelines (in particular ability to pay for Patent renewal in small installment over say a couple of months)

2) Failure by UKIPO in dealing with my accusation of breach of contract in relation to Patent administration.

3) Respect of my human rights. Right to enjoyment of property. Now all the above points have detailed legal points of law. I intend to sue in international jurisdiction (also UK). You will find that Patent law is mainly international in scope and detail. Patent ownership is linked to economic progress. Value of Patent could be in excess of £1 billion based on use and products created. I am already in touch with phone manufacturers about 10 already with licensing agreement of £1 million for one year to manufacture limited phones. Please note this is a slam dunk case for me. UKIPO is a formidable organisation with great powers, but limited responsibility it seems. Your organisation must now think about whether my case would succeed. I think it would. But then I am biased. Try and track all past communication with UKIPO relating to this matter. I am not doing anything else, except legal action. I am now a trainee barrister; I have informed UK bar council of intent to study to become a barrister. Suing UKIPO would cost me virtually nothing. It is a public interest matter. It would be down to making it possible for Patent owners to pay in small amounts over time to make deadline of Patent renewal dates! Put it this way, no phone company can make fan for phone in my Patent without paying me royalties. Patent limit of 25 years has not yet lapsed. Issue of lapsed by non renewal fee is yet to be dealt with by competent court. Yours sincerely."
We advised that the claimed defendant would be The Intellectual Property Office, that it is not clear on which decision the Office it is sought to challenge but if in relation to the 2008 renewal fee for a particular Patent then the position was set out in a letter from the Chief Executive on 30 July 2008 and from the Assistant Comptroller dated 13 August 2008 and that the position remains unchanged, any application for judicial review will be contested on that basis. We drew your attention to Part 54.5(1) of the Civil Procedures Rules 1998 in that any challenge to the matter to which reference is made is outside the limitation period and any application for judicial review of it will in addition be contested on that basis. We also provided the address for further correspondence in relation to this application, including the service of court documents.
You told us, "I don't understand why you’re not replying to my letters, I want my letters answered too. I find it ignorant of you that you are not replying to my letters. I am totally in the right, the Patent Office has been paid to do its job so the Patent Office should do its job." We replied, "As you will no doubt be aware, I have not personally replied to a number of your letters for some time. Instead I have delegated this responsibility to members of my senior Patents team because they are in a far more direct position to be able to help you with your various patent application queries. However, I have decided to write to you this time because I feel I need to intervene in order to stem what I now regard as the unacceptable level of correspondence you have been generating. This has become extremely resource intensive for my patents team and is not efficient use of their time. Neither does it ultimately help you. I take pride in the level of customer service the IPO offers its customers. For unrepresented patent applicants such as you, we do everything we can to try and make the sometimes complex process of getting a patent granted as simple as possible. However, this does rely on the cooperation of the applicant by:

1. Understanding that we have to operate under the relevant patent law and

2. Following prescribed procedures and time limits as set under that law.

That does not mean you have to accept everything the patent examiner says about your invention. The correct way of dealing with your patent applications is to carefully consider what the examiner has told you and if you do not agree with any part of it, to respond directly to that examiner on that particular case and within the time limit they set you. All letters we send you during the examination process contain the names and contact details of the person sending that letter. I can see looking back through the history of your patent applications over the years that many have not proceeded because you have not done this, either in substance or by not responding within the time limits set, or indeed not responding at all. This brings me to the various letters you have been sending addressed usually to me since May 2010. These have often contained long lists of your applications dating back many years in some cases and being at various different stages of the patenting process. I know we have written to you on several occasions listing the status of cases on your lists and advising you what you can and cannot do on those cases. In many instances you have ignored this information and advice and simply resubmitted further lists again, often duplicating application numbers on previous lists, even when you have been told there is no further action which you can take on those cases. Checking the status of cases on your lists is very labour intensive and time consuming, particularly as it serves no useful purpose if you do not respond suitably to the information and advice we have been offering you. Regrettably, I feel we have come to the point now when I cannot allow this sort of correspondence from you to continue to divert the resources of my patents teams. So I have decided that we should now proceed as follows in relation to these letters. I have instructed all staff who have been dealing with your letters addressed to me that they should, with immediate effect, not respond to them in any way - not even with an acknowledgement. The same will apply to letters not addressed to me, if any letter from you simply contains a list of your patent applications and a general request for status information or for grants for those applications. You have a number of applications still within the patenting process and of course we will continue to action those as the law requires. We will always answer correspondence from you on individual applications on a case by case basis. You should address all correspondence ideally to the named contact on each case or as a default, to the examiner. As I said earlier, all relevant contact details are on our official letters. Importantly, in correspondence, please seek to address the points made by us in the last letter we sent you. Without that, the case is likely to come up against the same difficulties you have had in the past. To summarise: Because you have failed to respond to our letters commenting on the status of your lists, we will no longer answer or acknowledge any general, non-case specific correspondence from you e.g. the kind of letters you have been routinely writing to me containing lists of your applications. We will only answer your correspondence if it relates directly to an individual application. It should ideally be addressed to the last named individual (or the examiner) on that case. When writing on an individual case, please try and address the detailed outstanding points on that case. I'm sorry if you regard this letter as harsh, but in my view we have tried to manage your correspondence with this office as sympathetically and systematically as possible, but with little positive effect for either side. I think the line I am now putting in place should help focus effort on both sides."
You told us, "Please find attached the latest correspondence I have exchanged with yourselves. My letter dated 27 August 2011 clearly describes my dissatisfaction with service delivery and the reasons why. However the response I received today does not explain why I have been given conflicting information or provide any reassurance that my application is being handed with the utmost attention - in fact the words recommended and withdraw in bold lettering are very worrying. The way the letter is worded and presented is quite poor and I am now more concerned than ever that my application will not reach a conclusion. So in the interest of saving everyone’s time and effort, I should very much appreciate your immediate intervention. As far as my application is concerned, I don’t think I am being unreasonable in requesting a conclusion be reached this year and confirmation to this effect - since most of the information I have been given to date, puts completion at this time. I look forward to hearing from you." We apologised for the level of service provided and explained the reasoning behind the slippage of examinations. We provided a more definitive estimate on the completion of the examination report and explained we would take the feedback into account when providing estimates in the future
You told us, "This is an official complaint against your staff. I am surprised to see that the decision of your Deputy on the 5 August 2011 which is under consideration before the court of appeal has been published on line on 16 August 2011 without my permission or consent. A matter that I consider as a serious breach of my rights. I request an urgent explanation from your side. In addition, I want to remove this publication immediately. Thirdly, I want to be informed officially with the outcome of your enquiry." We maintained that we had a legal right to publish the hearing officer’s decision.
You were unhappy with the way in which your application had been dealt with by the senior Patent examiner. You had sent us two letters by recorded delivery and had not received a response to either of them. We reviewed your application on how it had been searched and examined and that the examiner and other IPO staff have handled the application in accordance with normal procedures.