Economic Action Plan 2014 Act, No. 2 (S.C. 2014, c. 39)
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Assented to 2014-12-16
Marginal note:1993, c. 15, s. 33
122. Paragraph 28.1(1)(b) of the French version of the Act is replaced by the following:
b) à cette date, il s’est écoulé, depuis la date de dépôt de la demande déposée antérieurement, au plus douze mois;
Marginal note:1993, c. 15, s. 33
123. Paragraph 28.2(1)(a) of the Act is replaced by the following:
(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;
Marginal note:1993, c. 15, s. 33
124. Paragraph 28.3(a) of the Act is replaced by the following:
(a) information disclosed 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 information became available to the public in Canada or elsewhere; and
Marginal note:2001, c. 34, s. 63
125. (1) Subsection 28.4(2) of the Act is replaced by the following:
Marginal note:Requirements for request
(2) The request for priority shall be made in accordance with the regulations and the applicant shall submit to the Commissioner the filing date, the name of the country or office of filing and the number of each previously regularly filed application on which the request is based.
Marginal note:Request deemed never filed
(2.1) A request for priority is deemed never to have been made if the request is not made in accordance with the regulations or if the applicant does not submit the information, other than the number of each previously regularly filed application, required under subsection (2).
Marginal note:1993, c. 15, s. 33
(2) Subsection 28.4(3) of the French version of the Act is replaced by the following:
Marginal note:Retrait de la demande
(3) Le demandeur peut, selon les modalités réglementaires, retirer la demande de priorité à l’égard de la demande déposée antérieurement; si elle est fondée sur plusieurs demandes, il peut la retirer à l’égard de toutes celles-ci ou d’une ou de plusieurs d’entre elles.
Marginal note:1993, c. 15, s. 33
(3) The portion of paragraph 28.4(5)(a) of the Act before subparagraph (i) is replaced by the following:
(a) on the filing date of one of the following applications, as the case may be, more than 12 months have elapsed since the filing date of the previously regularly filed application:
Marginal note:1993, c. 15, s. 33
(4) The portion of paragraph 28.4(5)(b) of the English version of the Act before subparagraph (i) is replaced by the following:
(b) before the filing date of the application referred to in one of subparagraphs (a)(i) to (iv), as the case may be, another application
(5) Section 28.4 of the Act is amended by adding the following after subsection (5):
Marginal note:Filing date deemed to be within 12 months
(6) Subject to the regulations, for the purposes of paragraph 28.1(1)(b) and subparagraphs 28.2(1)(d)(iii) and 28.4(5)(a)(i) and (ii), the filing date of the pending application or the co-pending application, as the case may be, shall be deemed to be within 12 months after the filing date of the previously regularly filed application if
(a) the filing date of the pending application or the co-pending application, as the case may be, is more than 12 months after the filing date of the previously regularly filed application but within two months after the end of those 12 months; and
(b) the applicant, within the prescribed time,
(i) makes a request to the Commissioner for this subsection to apply,
(ii) states, in the request, that the failure to file the pending application or the co-pending application, as the case may be, within 12 months after the filing date of the previously regularly filed application was unintentional, and
(iii) complies with any prescribed requirements.
Marginal note:Powers of the Federal Court
(7) If subsection (6) applies, the Federal Court may, by order, declare that subsection never to have produced its effects if the Federal Court determines that the failure referred to in subparagraph (6)(b)(ii) was intentional.
Marginal note:1993, c. 15, s. 34
126. Section 29 of the Act is repealed.
127. Paragraph 31(2)(a) of the Act is replaced by the following:
(a) an applicant has agreed in writing to transfer a patent, when granted, to another person or to a joint applicant and refuses to proceed with the application, or
Marginal note:1993, c. 15, s. 38
128. Subsection 35(2) of the Act is replaced by the following:
Marginal note:Prescribed time
(2) The request shall be made within the prescribed time and the prescribed fee shall be paid within that time.
Marginal note:Late fee and notice
(3) If the request is not made or the prescribed fee is not paid within the prescribed time,
(a) the prescribed late fee shall be paid, in addition to the prescribed fee; and
(b) the Commissioner shall send a notice to the applicant stating that the application will be deemed to be abandoned if the request is not made and the prescribed fee and late fee are not paid before the end of two months after the date of the notice.
Marginal note:Request deemed made and prescribed fee deemed paid within prescribed time
(4) If the request is made and the prescribed fee and late fee are paid before a notice is sent or, if a notice has been sent, the request is made and the prescribed fee and late fee are paid before the end of two months after the date of the notice, the request shall be deemed to have been made and the prescribed fee shall be deemed to have been paid within the prescribed time.
Marginal note:Required examination
(5) The Commissioner may by a notice sent to the applicant, require that the request be made and the prescribed fee be paid within the prescribed time. However, the Commissioner is not authorized to send the notice if the prescribed time would end after the prescribed time referred to in subsection (2).
Marginal note:Non-application
(6) If a notice is sent under subsection (5), subsections (2) to (4) do not apply.
Marginal note:1993, c. 15, s. 39
129. Subsection 36(3) of the Act is replaced by the following:
Marginal note:Original application abandoned
(3) If an original application mentioned in subsection (2) or (2.1) is deemed to be abandoned and is not reinstated, the time for filing a divisional application ends on the later of the day on which the original application is deemed to be abandoned and the end of the prescribed time referred to in subsection 73(3).
Marginal note:R.S., c. 33 (3rd Supp.), s. 13; 1993, c. 15, s. 40
130. The heading before section 37 and sections 37 and 38 of the Act are replaced by the following:
BIOLOGICAL MATERIALS
Marginal note:1993, c. 15, s. 41
131. (1) Subsection 38.2(1) of the French version of the Act is replaced by the following:
Marginal note:Modification du mémoire descriptif et des dessins
38.2 (1) Sous réserve des paragraphes (2) et (3) et des règlements, les dessins et le mémoire descriptif qui sont compris dans la demande de brevet peuvent être modifiés avant la délivrance du brevet.
Marginal note:1993, c. 15, s. 41
(2) Subsections 38.2(2) and (3) of the Act are replaced by the following:
Marginal note:Restriction
(2) The specification and drawings may not be amended to add matter not reasonably to be inferred from the specification or drawings contained in the application on its filing date.
Marginal note:Language other than English or French
(3) However, if all or part of the text matter of the specification or drawings contained in the application on its filing date is in a language other than English or French, the specification and drawings may not be amended to add matter not reasonably to be inferred from both
(a) the specification or drawings contained in the application on its filing date, and
(b) the specification or drawings contained in the application immediately after the text matter is replaced by an English or French translation, in accordance with the regulations.
Marginal note:Non-application of subsections (2) and (3)
(4) Subsections (2) and (3) do not apply if it is admitted in the specification that the matter is prior art with respect to the application.
Marginal note:R.S., c. 33 (3rd Supp.), s. 16; 1993, c. 15, s. 43
132. Section 46 of the Act is replaced by the following:
Marginal note:Maintenance fees
46. (1) To maintain the rights accorded by a patent issued under this Act in effect, the prescribed fees shall be paid on or before the prescribed dates.
Marginal note:Late fee and notice
(2) If a prescribed fee is not paid on or before the applicable prescribed date,
(a) the prescribed late fee shall be paid, in addition to the prescribed fee; and
(b) the Commissioner shall send a notice to the patentee stating that the term limited for the duration of the patent will be deemed to have expired if the prescribed fee and late fee are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice.
Marginal note:Prescribed fee deemed paid on prescribed date
(3) If the prescribed fee and late fee are paid before a notice is sent or, if a notice is sent, the prescribed fee and late fee are paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, the prescribed fee shall be deemed to have been paid on the applicable prescribed date.
Marginal note:Term limited deemed expired on prescribed date
(4) If the prescribed fee and late fee are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, the term limited for the duration of the patent shall be deemed to have expired on the applicable prescribed date.
Marginal note:Subsection (4) deemed never to have produced its effects
(5) Subject to the regulations, if the term limited for the duration of a patent is deemed to have expired under subsection (4), that subsection is deemed never to have produced its effects if
(a) the patentee, within the prescribed time,
(i) makes a request to the Commissioner for the term limited for the duration of the patent to never have been deemed to have expired,
(ii) states, in the request, the reasons for the failure to pay the prescribed fee and late fee before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, and
(iii) pays the prescribed fee, the late fee and any additional prescribed fee; and
(b) the Commissioner determines that the failure occurred in spite of the due care required by the circumstances having been taken and informs the patentee of this determination.
Marginal note:Powers of the Federal Court
(6) If subsection (5) applies, the Federal Court may, by order, declare the term limited for the duration of the patent to have expired on the applicable prescribed date if the Federal Court determines either
(a) that the statement of the reasons referred to in subparagraph (5)(a)(ii) contains a material allegation that is untrue, or
(b) that, if paragraph (5)(b) applies, the failure referred to in subparagraph (5)(a)(ii) did not occur in spite of the due care required by the circumstances having been taken.
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