| Request for Examination (RFE) and Request for Reexamination (RFR) of applications can be revived even after the lapse of the statutory period in the event that the lapse was caused by Force Majeure. The amendment to the Patent Act has a new article (Art. 67-3) providing that RFE and RFR can be made even after the lapse of the statutory period (5 years after the filing date for RFE and within 30 days after the receipt of the rejection for RFR) in the event that the lapse is due to the causes beyond control of the applicant.
The RFE and RFR should be made within 2 months after the causes have ceased but not later than 1 year after the lapse of the statutory period. When this late RFE or RFR is made, the application is deemed not to be withdrawn (RFE) or the rejection is deemed not to be confirmed (RFE).
The causes beyond control of the applicant have not yet been defined. They would be, however, broader than the Force Majeure clause in contract law, according to a few precedent cases. The court interpreted “the causes beyond control of a party” to include the case where the party is unable to meet the due date in spite of undertaking the ordinary duty of care. The causes may include,
Delay of postal service due to Force Majeure
Wrongly-performed postal service
Service of the court decision of a case carried out by one without authorization
After the catastrophic Tsunami in Japan occurred in 2011, there were some requests from Japanese applicants for the revival of RFE and RFR applications affected by the Tsunami, but it was impossible at the time due to lack of related rules.
This amendment to the Patent Act will apply to applications filed on or after July 1, 2013.