Patent Act (R.S.C., 1985, c. P-4)

Act current to 2017-11-06 and last amended on 2017-09-21. Previous Versions

Divisional Applications

Marginal note:Patent for one invention only
  •  (1) A patent shall be granted for one invention only but in an action or other proceeding a patent shall not be deemed to be invalid by reason only that it has been granted for more than one invention.

  • Marginal note:Limitation of claims by applicant

    (2) Where an application (the “original application”) describes more than one invention, the applicant may limit the claims to one invention only, and any other invention disclosed may be made the subject of a divisional application, if the divisional application is filed before the issue of a patent on the original application.

  • Marginal note:Limitation of claims on direction of Commissioner

    (2.1) Where an application (the “original application”) describes and claims more than one invention, the applicant shall, on the direction of the Commissioner, limit the claims to one invention only, and any other invention disclosed may be made the subject of a divisional application, if the divisional application is filed before the issue of a patent on the original application.

  • Marginal note:Original application abandoned

    (3) If an original application mentioned in subsection (2) or (2.1) becomes abandoned, the time for filing a divisional application terminates with the expiration of the time for reinstating the original application under this Act.

  • Marginal note:Separate applications

    (4) A divisional application shall be deemed to be a separate and distinct application under this Act, to which its provisions apply as fully as may be, and separate fees shall be paid on the divisional application and it shall have the same filing date as the original application.

  • R.S., 1985, c. P-4, s. 36;
  • 1993, c. 15, s. 39.

Drawings, Models and Biological Materials

Marginal note:Drawings
  •  (1) In the case of a machine, or in any other case in which an invention admits of illustration by means of drawings, the applicant shall, as part of the application, furnish drawings of the invention that clearly show all parts of the invention.

  • Marginal note:Particulars

    (2) Each drawing must include references corresponding with the specification, and the Commissioner may require further drawings or dispense with any of them as the Commissioner sees fit.

  • R.S., 1985, c. P-4, s. 37;
  • 1993, c. 15, s. 40.
Marginal note:Models and specimens
  •  (1) In all cases in which an invention admits of representation by model, the applicant, if required by the Commissioner, shall furnish a model of convenient size exhibiting its several parts in due proportion, and when an invention is a composition of matter, the applicant, if required by the Commissioner, shall furnish specimens of the ingredients, and of the composition, sufficient in quantity for the purpose of experiment.

  • Marginal note:Dangerous substances

    (2) If the ingredients or composition referred to in subsection (1) are of an explosive or dangerous character, they shall be furnished with such precautions as are specified in the requisition therefor.

  • R.S., 1985, c. P-4, s. 38;
  • R.S., 1985, c. 33 (3rd Supp.), s. 13.
Marginal note:Biological material may be deposited
  •  (1) Where a specification refers to a deposit of biological material and the deposit is in accordance with the regulations, the deposit shall be considered part of the specification and, to the extent that subsection 27(3) cannot otherwise reasonably be complied with, the deposit shall be taken into consideration in determining whether the specification complies with that subsection.

  • Marginal note:Deposit not required

    (2) For greater certainty, a reference to a deposit of biological material in a specification does not create a presumption that the deposit is required for the purpose of complying with subsection 27(3).

  • 1993, c. 15, s. 41.

Amendments to Specifications and Drawings

Marginal note:Amendments to specifications and drawings
  •  (1) Subject to subsections (2) and (3) and the regulations, the specification and any drawings furnished as part of an application for a patent in Canada may be amended before the patent is issued.

  • Marginal note:Restriction on amendments to specifications

    (2) The specification may not be amended to describe matter not reasonably to be inferred from the specification or drawings as originally filed, except in so far as it is admitted in the specification that the matter is prior art with respect to the application.

  • Marginal note:Restriction on amendments to drawings

    (3) Drawings may not be amended to add matter not reasonably to be inferred from the specification or drawings as originally filed, except in so far as it is admitted in the specification that the matter is prior art with respect to the application.

  • 1993, c. 15, s. 41.

 [Repealed, 1993, c. 2, s. 3]

Refusal of Patents

Marginal note:Refusal by Commissioner

 Whenever the Commissioner is satisfied that an applicant is not by law entitled to be granted a patent, he shall refuse the application and, by registered letter addressed to the applicant or his registered agent, notify the applicant of the refusal and of the ground or reason therefor.

  • R.S., c. P-4, s. 42.
Marginal note:Appeal to Federal Court

 Every person who has failed to obtain a patent by reason of a refusal of the Commissioner to grant it may, at any time within six months after notice as provided for in section 40 has been mailed, appeal from the decision of the Commissioner to the Federal Court and that Court has exclusive jurisdiction to hear and determine the appeal.

  • R.S., 1985, c. P-4, s. 41;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16.

Grant of Patents

Marginal note:Contents of patent

 Every patent granted under this Act shall contain the title or name of the invention, with a reference to the specification, and shall, subject to this Act, grant to the patentee and the patentee’s legal representatives for the term of the patent, from the granting of the patent, the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used, subject to adjudication in respect thereof before any court of competent jurisdiction.

  • R.S., 1985, c. P-4, s. 42;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16.

Form and Term of Patents

Marginal note:Form and duration of patents
  •  (1) Subject to section 46, every patent granted under this Act shall be issued under the seal of the Patent Office, and shall bear on its face the filing date of the application for the patent, the date on which the application became open to public inspection under section 10, the date on which the patent is granted and issued and any prescribed information.

  • Marginal note:Validity of patent

    (2) After the patent is issued, it shall, in the absence of any evidence to the contrary, be valid and avail the patentee and the legal representatives of the patentee for the term mentioned in section 44 or 45, whichever is applicable.

  • R.S., 1985, c. P-4, s. 43;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16;
  • 1993, c. 15, s. 42.
Marginal note:Term of patents based on applications filed on or after October 1, 1989

 Subject to section 46, where an application for a patent is filed under this Act on or after October 1, 1989, the term limited for the duration of the patent is twenty years from the filing date.

  • R.S., 1985, c. P-4, s. 44;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16;
  • 1993, c. 15, s. 42.
Marginal note:Term of patents based on applications filed before October 1, 1989
  •  (1) Subject to section 46, where an application for a patent is filed under this Act before October 1, 1989, the term limited for the duration of the patent is seventeen years from the date on which the patent is issued.

  • Marginal note:Term from date of issue or filing

    (2) Where the term limited for the duration of a patent referred to in subsection (1) had not expired before the day on which this section came into force, the term is seventeen years from the date on which the patent is issued or twenty years from the filing date, whichever term expires later.

  • R.S., 1985, c. P-4, s. 45;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16;
  • 1993, c. 15, s. 42;
  • 2001, c. 10, s. 1.
Marginal note:Maintenance fees
  •  (1) A patentee of a patent issued by the Patent Office under this Act after the coming into force of this section shall, to maintain the rights accorded by the patent, pay to the Commissioner such fees, in respect of such periods, as may be prescribed.

  • Marginal note:Lapse of term if maintenance fees not paid

    (2) Where the fees payable under subsection (1) are not paid within the time provided by the regulations, the term limited for the duration of the patent shall be deemed to have expired at the end of that time.

  • R.S., 1985, c. P-4, s. 46;
  • R.S., 1985, c. 33 (3rd Supp.), s. 16;
  • 1993, c. 15, s. 43.

Reissue of Patents

Marginal note:Issue of new or amended patents
  •  (1) Whenever any patent is deemed defective or inoperative by reason of insufficient description and specification, or by reason of the patentee’s claiming more or less than he had a right to claim as new, but at the same time it appears that the error arose from inadvertence, accident or mistake, without any fraudulent or deceptive intention, the Commissioner may, on the surrender of the patent within four years from its date and the payment of a further prescribed fee, cause a new patent, in accordance with an amended description and specification made by the patentee, to be issued to him for the same invention for the then unexpired term for which the original patent was granted.

  • Marginal note:Certificate of supplementary protection

    (1.1) Subsection (1) also applies in the case where the original patent is set out in a certificate of supplementary protection and the original patent’s term has expired, except that in that case the issuance of the new patent, whose term remains expired, is for the purpose of establishing the rights, privileges and liberties granted under the certificate.

  • Marginal note:Effect of new patent

    (2) The surrender referred to in subsection (1) takes effect only on the issue of the new patent, and the new patent and the amended description and specification have the same effect in law, on the trial of any action thereafter commenced for any cause subsequently accruing, as if the amended description and specification had been originally filed in their corrected form before the issue of the original patent, but, in so far as the claims of the original and reissued patents are identical, the surrender does not affect any action pending at the time of reissue or abate any cause of action then existing, and the reissued patent to the extent that its claims are identical with the original patent constitutes a continuation thereof and has effect continuously from the date of the original patent.

  • Marginal note:Separate patents for separate parts

    (3) The Commissioner may entertain separate applications and cause patents to be issued for distinct and separate parts of the invention patented, on payment of the fee for a reissue for each of the reissued patents.

  • R.S., 1985, c. P-4, s. 47;
  • 2017, c. 6, s. 37.
 
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