Patent Act (R.S.C., 1985, c. P-4)

Marginal note:Subject-matter of claim must not be previously disclosed

• 28.2 (1) The subject-matter defined by a claim in an application for a patent in Canada (the “pending application”) must not have been disclosed

  • (a) before the one-year period immediately preceding the filing date or, if the claim date is before that period, before the claim date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere;

  • (b) before the claim date by a person not mentioned in paragraph (a) in such a manner that the subject-matter became available to the public in Canada or elsewhere;

  • (c) in an application for a patent that is filed in Canada by a person other than the applicant, and has a filing date that is before the claim date; or

  • (d) in an application (the “co-pending application”) for a patent that is filed in Canada by a person other than the applicant and has a filing date that is on or after the claim date if

    • (i) the co-pending application is filed by

      • (A) a person who has, or whose agent, legal representative or predecessor in title has, previously regularly filed in or for Canada an application for a patent disclosing the subject-matter defined by the claim, or

      • (B) a person who is entitled to protection under the terms of any treaty or convention relating to patents to which Canada is a party and who has, or whose agent, legal representative or predecessor in title has, previously regularly filed in or for any other country that by treaty, convention or law affords similar protection to citizens of Canada an application for a patent disclosing the subject-matter defined by the claim,

    • (ii) the filing date of the previously regularly filed application is before the claim date of the pending application,

    • (iii) the filing date of the co-pending application is within twelve months after the filing date of the previously regularly filed application, and

    • (iv) the applicant has, in respect of the co-pending application, made a request for priority on the basis of the previously regularly filed application.

• Marginal note:Withdrawal of application

  (2) An application mentioned in paragraph (1)(c) or a co-pending application mentioned in paragraph (1)(d) that is withdrawn before it is open to public inspection shall, for the purposes of this section, be considered never to have been filed.