Patent Act (R.S.C., 1985, c. P-4)

Act current to 2017-10-13 and last amended on 2017-09-21. Previous Versions

Transfer

Marginal note:Transfer of patent
  •  (1) A certificate of supplementary protection, or an application for one, is not transferable other than by the transfer of the patent, or part of the patent, that is set out in the certificate or application.

  • Marginal note:Whole of patent

    (2) If the whole of the patent is transferred, the certificate or application is transferred accordingly.

  • Marginal note:Part of patent

    (3) If part of the patent is transferred, any part of the certificate or application — including, as the case may be, the whole of it — that corresponds to the transferred part of the patent is transferred accordingly.

  • Marginal note:For greater certainty

    (4) For greater certainty, the transfer of part of an application for a certificate of supplementary protection does not result in its division into more than one application.

  • 2017, c. 6, s. 59.

Administrative Matters

Marginal note:Applications, fees and documents

 Applications, fees and documents relating to certificates of supplementary protection shall be submitted to the Minister.

  • 2017, c. 6, s. 59.
Marginal note:Inspection by public
  •  (1) The Minister shall ensure that the prescribed contents of all certificates of supplementary protection and applications for a certificate are made available for public inspection under the conditions that may be prescribed.

  • Marginal note:Non-application

    (2) Subsection (1) does not apply with respect to the contents of applications for a certificate that are refused, declared invalid or void, expired or withdrawn.

  • 2017, c. 6, s. 59.
Marginal note:Copy in case of loss or destruction

 The Minister may issue a certified copy of a certificate of supplementary protection to replace one that is lost or destroyed.

  • 2017, c. 6, s. 59.
Marginal note:Issuance of patent under section 47
  •  (1) If a patent set out in a certificate of supplementary protection or in a pending application for such a certificate is surrendered, and a new patent is issued, under section 47, the holder of the certificate or the applicant shall, before the end of the prescribed period that begins on the day on which the new patent is issued, provide the Minister with written notice of the number, as recorded in the Patent Office, of the new patent to which the certificate or application relates.

  • Marginal note:One patent

    (2) If more than one new patent is issued under section 47, the holder of the certificate or the applicant shall provide the number for only one of the new patents.

  • Marginal note:New certificate

    (3) If notice is provided under subsection (1) by a holder of a certificate, the Minister shall issue a new certificate of supplementary protection, setting out the new patent number, to replace the original certificate. The new certificate’s term is the then unexpired term of the original certificate.

  • Marginal note:Effect of new certificate

    (4) The new certificate is deemed to have been issued on the day on which the new patent is issued. The original certificate and the new certificate have the same effect in law, in any action commenced after the issuance of the new certificate for any cause accruing after that issuance, as if the new patent had been set out in the original certificate; however, insofar as the claims of the new patent and the original patent are identical, the issuance of the new certificate does not affect any action pending at the time of the issuance of the new certificate or abate any cause of action that existed at that time and the new certificate constitutes a continuation of the original certificate and has effect accordingly.

  • Marginal note:Application

    (5) If notice is provided under subsection (1) by an applicant for a pending application, the Minister shall

    • (a) amend the application to set out the new patent number; and

    • (b) provide written notice of the amendment to any other applicant referred to in section 109 with respect to the application.

  • Marginal note:Effect of amendment to application

    (6) The amended application has the same effect, for the purposes of sections 106 to 113, as if the pending application had been originally filed in its amended form.

  • 2017, c. 6, s. 59.

Use of Certificates of Supplementary Protection by Government

Marginal note:Application

 Sections 19 to 19.2 apply with respect to certificates of supplementary protection, with

  • (a) any reference to “patented invention” to be read, with any grammatical adaptations, as a reference to “invention protected by a certificate of supplementary protection”; and

  • (b) any reference to “patentee” to be read as a reference to “holder of the certificate of supplementary protection”.

  • 2017, c. 6, s. 59.

Infringement and Impeachment

Marginal note:Action for infringement
  •  (1) An action for the infringement of a certificate of supplementary protection may be brought in the same manner as an action for the infringement of a patent, and the following provisions apply to the action:

    • (a) sections 54, 57 and 59, with any reference to “patent” to be read as a reference to “certificate of supplementary protection”;

    • (b) subsection 55(1), and subsection 55(3) as it applies to that subsection (1), with any reference to “patent” to be read as a reference to “certificate of supplementary protection”, any reference to “patentee” to be read as a reference to “holder of the certificate of supplementary protection” and any reference to “grant” to be read as a reference to “taking of effect”;

    • (c) section 55.01;

    • (d) section 55.1, with any reference to “patent” to be read as a reference to “certificate of supplementary protection” and any reference to “patented process” to be read as a reference to “process protected by the certificate of supplementary protection”;

    • (e) subsections 55.2(1) and (6), with any reference to “patent” to be read as a reference to “certificate of supplementary protection” and any reference to “patented invention” to be read as a reference to “invention protected by the certificate of supplementary protection”;

    • (f) subsection 56(1), with any reference to “patentee” to be read as a reference to “holder of a certificate of supplementary protection that sets out that patent”;

    • (g) section 58, with the reference to “a patent that contains two or more claims” to be read as a reference to a “two or more claims in a patent that is set out in a certificate of supplementary protection” and with the reference to “the patent as if it” to be read as a reference to “the certificate as if the patent set out in it”.

  • Marginal note:Regulations — subsection 55.2(4)

    (2) The Governor in Council may make regulations respecting the infringement of any certificate of supplementary protection that, directly or indirectly, could result or results from the making, construction, use or sale of a patented invention or invention protected by a certificate of supplementary protection in accordance with subsection 55.2(1), including regulations described in paragraphs 55.2(4)(a) to (k), with

    • (a) any reference in those paragraphs to a “patent” to be read as a reference to a “certificate of supplementary protection”; and

    • (b) the reference in paragraph 55.2(4)(k) to “subsection 60(1)” to be read as a reference to “subsection 125(1)”.

  • Marginal note:Inconsistency or conflict

    (3) In the event of an inconsistency or conflict between regulations made under subsection (2) and any Act of Parliament or regulations made under such an Act, the regulations made under subsection (2) prevail to the extent of the inconsistency or conflict.

  • 2017, c. 6, s. 59.
Marginal note:Impeachment
  •  (1) A certificate of supplementary protection, or any claim in the patent set out in such a certificate, may be declared invalid or void — including on the basis that the certificate was issued despite non-compliance with any of the requirements, as they existed at the time that the certificate was issued, of subsection 106(1) or that the patent set out in the certificate no longer complies with the requirements, as they existed at that time, set out in paragraph 106(1)(c) — by the Federal Court at the instance of the Attorney General of Canada or any interested person.

  • Marginal note:Application

    (2) Subsections 60(2) and (3) apply with respect to a certificate of supplementary protection, with any reference to “patentee” to be read as a reference to “holder of a certificate of supplementary protection” and any reference to “patent” to be read as a reference to “certificate of supplementary protection”.

  • 2017, c. 6, s. 59.
Marginal note:Judgment voiding certificate or claim
  •  (1) A certificate of supplementary protection, or a claim in the patent set out in such a certificate, that is voided by a judgment shall be and be held to have been void and of no effect, unless the judgment is reversed on appeal as provided in subsection (2).

  • Marginal note:Appeal

    (2) Every judgment voiding a certificate of supplementary protection or any claim in the patent set out in such a certificate, and every judgment refusing to do so, is subject to appeal to any court having appellate jurisdiction in other cases decided by the court by which the judgment was rendered.

  • 2017, c. 6, s. 59.
 
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