Patent Act (R.S.C., 1985, c. P-4)

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

Marginal note:Information to be provided
  •  (1) An applicant shall provide the Minister with any additional information that the Minister considers necessary.

  • Marginal note:Refusal

    (2) Whenever the Minister is satisfied that any of the requirements set out in section 106 are not met with respect to an application for a certificate of supplementary protection, the Minister may refuse the application. The Minister shall notify the applicant of a refusal and of the grounds for it.

  • 2017, c. 6, s. 59.
Marginal note:Order of priority — same authorization for sale
  •  (1) Subsections (2) to (4) apply in determining the priority of applications for a certificate of supplementary protection that set out the same authorization for sale.

  • Marginal note:Patents granted on or before authorization for sale

    (2) An application setting out a patent that was granted on or before the day on which the authorization for sale was issued has the same priority as every other such application.

  • Marginal note:Priority over patents granted after authorization for sale

    (3) An application setting out a patent that was granted on or before the day on which the authorization for sale was issued has priority over an application setting out a patent that is granted after that date.

  • Marginal note:Patents granted after authorization for sale — priority

    (4) Priority among applications setting out patents that were granted after the day on which the authorization for sale was issued is established according to the date on which the patent was granted, with an earlier date having priority over a later date and patents granted on the same date having the same priority.

  • 2017, c. 6, s. 59.
Marginal note:Applications with same authorization for sale and priority

 If two or more pending applications set out the same authorization for sale and have the same priority, the Minister shall provide each applicant with a written notice setting out the name and contact information of all the applicants, as well as the number, as recorded in the Patent Office, of the patent set out in each application.

  • 2017, c. 6, s. 59.
Marginal note:Declaration of non-compliance
  •  (1) A pending application for a certificate of supplementary protection may be declared invalid or void by the Federal Court for non-compliance with section 106 at the instance of another applicant whose application for a certificate sets out the same authorization for sale and the same priority.

  • Marginal note:Limitation

    (2) A proceeding to obtain a declaration under subsection (1) shall be commenced before the end of the prescribed period that begins on the day that is specified by the Minister in the written notice sent under section 109.

  • Marginal note:Copy to Minister

    (3) Anyone who commences such a proceeding, or an appeal or application for leave to appeal with respect to such a proceeding, shall provide the Minister with a copy of

    • (a) any document that commences the proceeding, appeal or application, immediately after the document is filed with the court; and

    • (b) any document that marks the end of the proceeding, appeal or application, immediately after the document is issued by or filed with the court.

  • 2017, c. 6, s. 59.
Marginal note:Expiry of pending applications
  •  (1) If two or more applications that set out the same authorization for sale and have the same priority are still pending at the end of the prescribed period that begins on the day specified in the written notice sent under section 109, all of those applications expire at that end of that period. However, if any proceedings are brought under section 110 with respect to any of those applications, all of those applications — if two or more are still pending — expire at the end of the prescribed period that begins on the day on which the last of any of the proceedings to be completed is finally disposed of.

  • Marginal note:Expiry of application with lower priority

    (2) A pending application that sets out the same authorization for sale as another application of higher priority expires on the day on which the Minister issues a certificate of supplementary protection in respect of that other application.

  • 2017, c. 6, s. 59.
Marginal note:Withdrawal

 An applicant for a certificate of supplementary protection may withdraw their application in accordance with the regulations.

  • 2017, c. 6, s. 59.

Certificate of Supplementary Protection

Marginal note:Issue of certificate

 The Minister shall issue, to the patentee, a certificate of supplementary protection for the patented invention set out in the patentee’s application if, on the day of issuance,

  • (a) the Minister is satisfied that all requirements set out in section 106 are met;

  • (b) the applicable period referred to in subsection 106(3) for filing the application has ended;

  • (c) there is no other pending application that sets out the same authorization for sale and that has priority over, or the same priority as, the application; and

  • (d) any court proceedings, brought under section 110 with respect to the application or to another pending application that sets out the same authorization for sale and that has priority over, or the same priority as, the application, have been finally disposed of.

  • 2017, c. 6, s. 59.
Marginal note:Contents of certificate

 A certificate of supplementary protection shall set out

  • (a) the number, as recorded in the Patent Office, of the patent set out in the application;

  • (b) the medicinal ingredient or combination of medicinal ingredients set out in the application;

  • (c) a statement as to whether the certificate relates to use in humans or to veterinary use;

  • (d) the number of the authorization for sale set out in the application; and

  • (e) the day on which the certificate’s term begins and the day on which the term ends, as determined under section 116.

  • 2017, c. 6, s. 59.
Marginal note:Scope of supplementary protection
  •  (1) The issuance of a certificate of supplementary protection grants the certificate’s holder and their legal representatives, during the certificate’s term, the same rights, privileges and liberties that are granted by the patent set out in the certificate, but only with respect to the making, constructing, using and selling of any drug that contains the medicinal ingredient, or combination of medicinal ingredients, set out in the certificate, by itself or in addition to any other medicinal ingredient.

  • Marginal note:No infringement — export

    (2) Despite subsection (1), it is not an infringement of the certificate of supplementary protection for any person to make, construct, use or sell the medicinal ingredient or combination of medicinal ingredients for the purpose of export from Canada.

  • 2017, c. 6, s. 59.
Marginal note:Validity
  •  (1) After the certificate is issued, it shall, in the absence of any evidence to the contrary, be valid and avail the holder and the holder’s legal representatives for its term.

  • Marginal note:Taking effect

    (2) A certificate of supplementary protection takes effect on the expiry of the term under section 44, without taking into account section 46, of the patent set out in the certificate, but the certificate takes effect only if the patent remains valid until, and not void before, the expiry of that term.

  • Marginal note:Calculation of term

    (3) The certificate’s term is calculated by subtracting five years from the period beginning on the filing date of the application for the patent and ending on the day on which the authorization for sale set out in the certificate is issued, but in any event is for a maximum of two years.

  • Marginal note:Reduction in period

    (4) Despite subsection (3), if the person to whom the authorization for sale set out in the certificate is issued is also the patentee, the Minister may, if he or she is of the opinion that that person’s failure to act resulted in a period of unjustified delay in the process of obtaining the authorization for sale, reduce the term of the certificate when issuing it by the amount of that period.

  • Marginal note:Never takes effect

    (5) A certificate of supplementary protection that has been issued never takes effect if the calculation of its term, including any reduction under subsection (3), produces a result of zero or a negative value.

  • 2017, c. 6, s. 59.
Marginal note:Revocation of certificate

 The Minister shall revoke a certificate of supplementary protection in the prescribed circumstances.

  • 2017, c. 6, s. 59.
 
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