Patent Act (R.S.C., 1985, c. P-4)

Act current to 2017-06-19 and last amended on 2016-06-24. Previous Versions

Marginal note:Certificate of board
  •  (1) On conclusion of a re-examination proceeding in respect of a claim of a patent, the re-examination board shall issue a certificate

    • (a) cancelling any claim of the patent determined to be unpatentable;

    • (b) confirming any claim of the patent determined to be patentable; or

    • (c) incorporating in the patent any proposed amended or new claim determined to be patentable.

  • Marginal note:Certificate attached to patent

    (2) A certificate issued in respect of a patent under subsection (1) shall be attached to the patent and made part thereof by reference, and a copy of the certificate shall be sent by registered mail to the patentee.

  • Marginal note:Effect of certificate

    (3) For the purposes of this Act, where a certificate issued in respect of a patent under subsection (1)

    • (a) cancels any claim but not all claims of the patent, the patent shall be deemed to have been issued, from the date of grant, in the corrected form;

    • (b) cancels all claims of the patent, the patent shall be deemed never to have been issued; or

    • (c) amends any claim of the patent or incorporates a new claim in the patent, the amended claim or new claim shall be effective, from the date of the certificate, for the unexpired term of the patent.

  • Marginal note:Appeals

    (4) Subsection (3) does not apply until the time for taking an appeal has expired under subsection 48.5(2) and, if an appeal is taken, subsection (3) applies only to the extent provided in the final judgment on the appeal.

  • R.S., 1985, c. 33 (3rd Supp.), s. 18;
  • 1993, c. 15, s. 47.
Marginal note:Appeals
  •  (1) Any decision of a re-examination board set out in a certificate issued under subsection 48.4(1) is subject to appeal by the patentee to the Federal Court.

  • Marginal note:Limitation

    (2) No appeal may be taken under subsection (1) after three months from the date a copy of the certificate is sent by registered mail to the patentee.

  • R.S., 1985, c. 33 (3rd Supp.), s. 18.

Assignments and Devolutions

Marginal note:Assignee or personal representatives
  •  (1) A patent may be granted to any person to whom an inventor, entitled under this Act to obtain a patent, has assigned in writing or bequeathed by his last will his right to obtain it, and, in the absence of an assignment or bequest, the patent may be granted to the personal representatives of the estate of the deceased inventor.

  • Marginal note:Assignees may object

    (2) Where an applicant for a patent has, after filing the application, assigned his right to obtain the patent, or where the applicant has either before or after filing the application assigned in writing the whole or part of his property or interest in the invention, the assignee may register the assignment in the Patent Office in such manner as may be determined by the Commissioner, and no application for a patent may be withdrawn without the consent in writing of every such registered assignee.

  • Marginal note:Attestation

    (3) No assignment shall be registered in the Patent Office unless it is accompanied by the affidavit of a subscribing witness or established by other proof to the satisfaction of the Commissioner that the assignment has been signed and executed by the assignor.

  • R.S., 1985, c. P-4, s. 49;
  • R.S., 1985, c. 33 (3rd Supp.), s. 19.
Marginal note:Patents to be assignable
  •  (1) Every patent issued for an invention is assignable in law, either as to the whole interest or as to any part thereof, by an instrument in writing.

  • Marginal note:Registration

    (2) Every assignment of a patent, and every grant and conveyance of any exclusive right to make and use and to grant to others the right to make and use the invention patented, within and throughout Canada or any part thereof, shall be registered in the Patent Office in the manner determined by the Commissioner.

  • Marginal note:Attestation

    (3) No assignment, grant or conveyance shall be registered in the Patent Office unless it is accompanied by the affidavit of a subscribing witness or established by other proof to the satisfaction of the Commissioner that the assignment, grant or conveyance has been signed and executed by the assignor and by every other party thereto.

  • R.S., 1985, c. P-4, s. 50;
  • R.S., 1985, c. 33 (3rd Supp.), s. 20.
Marginal note:When assignment void

 Every assignment affecting a patent for invention, whether it is one referred to in section 49 or 50, is void against any subsequent assignee, unless the assignment is registered as prescribed by those sections, before the registration of the instrument under which the subsequent assignee claims.

  • R.S., c. P-4, s. 53.
Marginal note:Jurisdiction of Federal Court

 The Federal Court has jurisdiction, on the application of the Commissioner or of any person interested, to order that any entry in the records of the Patent Office relating to the title to a patent be varied or expunged.

  • R.S., c. P-4, s. 54;
  • R.S., c. 10(2nd Supp.), s. 64.

Legal Proceedings in Respect of Patents

Marginal note:Void in certain cases, or valid only for parts
  •  (1) A patent is void if any material allegation in the petition of the applicant in respect of the patent is untrue, or if the specification and drawings contain more or less than is necessary for obtaining the end for which they purport to be made, and the omission or addition is wilfully made for the purpose of misleading.

  • Marginal note:Exception

    (2) Where it appears to a court that the omission or addition referred to in subsection (1) was an involuntary error and it is proved that the patentee is entitled to the remainder of his patent, the court shall render a judgment in accordance with the facts, and shall determine the costs, and the patent shall be held valid for that part of the invention described to which the patentee is so found to be entitled.

  • Marginal note:Copies of judgment

    (3) Two office copies of the judgment rendered under subsection (1) shall be furnished to the Patent Office by the patentee, one of which shall be registered and remain of record in the Office and the other attached to the patent and made a part of it by a reference thereto.

  • R.S., c. P-4, s. 55.

Infringement

Marginal note:Jurisdiction of courts
  •  (1) An action for the infringement of a patent may be brought in that court of record that, in the province in which the infringement is said to have occurred, has jurisdiction, pecuniarily, to the amount of the damages claimed and that, with relation to the other courts of the province, holds its sittings nearest to the place of residence or of business of the defendant, and that court shall decide the case and determine the costs, and assumption of jurisdiction by the court is of itself sufficient proof of jurisdiction.

  • Marginal note:Jurisdiction of Federal Court

    (2) Nothing in this section impairs the jurisdiction of the Federal Court under section 20 of the Federal Courts Act or otherwise.

  • R.S., 1985, c. P-4, s. 54;
  • 2002, c. 8, s. 182.
Marginal note:Liability for patent infringement
  •  (1) A person who infringes a patent is liable to the patentee and to all persons claiming under the patentee for all damage sustained by the patentee or by any such person, after the grant of the patent, by reason of the infringement.

  • Marginal note:Liability damage before patent is granted

    (2) A person is liable to pay reasonable compensation to a patentee and to all persons claiming under the patentee for any damage sustained by the patentee or by any of those persons by reason of any act on the part of that person, after the application for the patent became open to public inspection under section 10 and before the grant of the patent, that would have constituted an infringement of the patent if the patent had been granted on the day the application became open to public inspection under that section.

  • Marginal note:Patentee to be a party

    (3) Unless otherwise expressly provided, the patentee shall be or be made a party to any proceeding under subsection (1) or (2).

  • Marginal note:Deemed action for infringement

    (4) For the purposes of this section and sections 54 and 55.01 to 59, any proceeding under subsection (2) is deemed to be an action for the infringement of a patent and the act on which that proceeding is based is deemed to be an act of infringement of the patent.

  • R.S., 1985, c. P-4, s. 55;
  • R.S., 1985, c. 33 (3rd Supp.), s. 21;
  • 1993, c. 15, s. 48.
Marginal note:Limitation

 No remedy may be awarded for an act of infringement committed more than six years before the commencement of the action for infringement.

  • 1993, c. 15, s. 48.
 
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