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Patent Act (R.S.C., 1985, c. P-4)

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Act current to 2021-09-11 and last amended on 2021-06-30. Previous Versions

Amendments to Specifications and Drawings

Marginal note:Amendments to specifications and drawings

  •  (1) Subject to subsections (2) to (3.1) and the regulations, the specification and drawings contained in an application for a patent in Canada may be amended before the patent is issued.

  • Marginal note:Restriction

    (2) The specification and drawings contained in an application, other than a divisional application, may not be amended to add matter that cannot reasonably 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:Divisional application

    (3.1) The specification and drawings contained in a divisional application may not be amended to add matter

    • (a) that may not be or could not have been added, under subsection (2) or (3) or this subsection, to the specification and drawings contained in the application for a patent from which the divisional application results; or

    • (b) that cannot reasonably be inferred from the specification or drawings contained in the divisional application on the date on which the Commissioner, in respect of that application, receives the prescribed documents and information or, if they are received on different dates, on the latest of those dates.

  • Marginal note:Non-application of subsections (2) to (3.1)

    (4) Subsections (2) to (3.1) do not apply if it is admitted in the specification that the matter is prior art with respect to the application.

  • Marginal note:Application subject to regulations

    (5) Subsections (2) to (3.1) apply subject to any regulations made under paragraph 12(1)(j.81).

 [Repealed, 1993, c. 2, s. 3]

Refusal of Patents

Marginal note:Refusal by Commissioner

 Whenever the Commissioner is satisfied that an applicant is not by law entitled to be granted a patent, he shall refuse the application and, by registered letter addressed to the applicant or his registered agent, notify the applicant of the refusal and of the ground or reason therefor.

  • R.S., c. P-4, s. 42

Marginal note:Appeal to Federal Court

 Every person who has failed to obtain a patent by reason of a refusal of the Commissioner to grant it may, at any time within six months after notice as provided for in section 40 has been mailed, appeal from the decision of the Commissioner to the Federal Court and that Court has exclusive jurisdiction to hear and determine the appeal.

  • R.S., 1985, c. P-4, s. 41
  • R.S., 1985, c. 33 (3rd Supp.), s. 16

Grant of Patents

Marginal note:Contents of patent

 Every patent granted under this Act shall contain the title or name of the invention, with a reference to the specification, and shall, subject to this Act, grant to the patentee and the patentee’s legal representatives for the term of the patent, from the granting of the patent, the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used, subject to adjudication in respect thereof before any court of competent jurisdiction.

  • R.S., 1985, c. P-4, s. 42
  • R.S., 1985, c. 33 (3rd Supp.), s. 16

Form and Term of Patents

Marginal note:Form and duration of patents

  •  (1) Subject to section 46, every patent granted under this Act shall be issued under the seal of the Patent Office, and shall bear on its face the filing date of the application for the patent, the date on which the application became open to public inspection under section 10, the date on which the patent is granted and issued and any prescribed information.

  • Marginal note:Validity of patent

    (2) After the patent is issued, it shall, in the absence of any evidence to the contrary, be valid and avail the patentee and the legal representatives of the patentee for the term mentioned in section 44 or 45, whichever is applicable.

  • R.S., 1985, c. P-4, s. 43
  • R.S., 1985, c. 33 (3rd Supp.), s. 16
  • 1993, c. 15, s. 42

Marginal note:Term of patents based on applications filed on or after October 1, 1989

 Subject to section 46, where an application for a patent is filed under this Act on or after October 1, 1989, the term limited for the duration of the patent is twenty years from the filing date.

  • R.S., 1985, c. P-4, s. 44
  • R.S., 1985, c. 33 (3rd Supp.), s. 16
  • 1993, c. 15, s. 42

Marginal note:Term of patents based on applications filed before October 1, 1989

  •  (1) Subject to section 46, where an application for a patent is filed under this Act before October 1, 1989, the term limited for the duration of the patent is seventeen years from the date on which the patent is issued.

  • Marginal note:Term from date of issue or filing

    (2) Where the term limited for the duration of a patent referred to in subsection (1) had not expired before the day on which this section came into force, the term is seventeen years from the date on which the patent is issued or twenty years from the filing date, whichever term expires later.

  • R.S., 1985, c. P-4, s. 45
  • R.S., 1985, c. 33 (3rd Supp.), s. 16
  • 1993, c. 15, s. 42
  • 2001, c. 10, s. 1

Marginal note:Maintenance fees

  •  (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.

  • R.S., 1985, c. P-4, s. 46
  • R.S., 1985, c. 33 (3rd Supp.), s. 16
  • 1993, c. 15, s. 43
  • 2014, c. 39, s. 132
 
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