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Patent Act (R.S.C., 1985, c. P-4)

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Act current to 2020-01-27 and last amended on 2019-10-30. Previous Versions

Transitional Provisions (continued)

Marginal note:Applications — no filing date

 An application for a patent that is filed before the coming-into-force date and that does not have a filing date on the coming-into-force date shall be deemed never to have been filed.

  • 2014, c. 39, s. 139

Marginal note:Applications — filing date before October 1, 1989

 An application for a patent whose filing date is before October 1, 1989 shall be dealt with and disposed of in accordance with

  • (a) the provisions of this Act as they read immediately before October 1, 1989, other than the definition legal representatives in section 2, subsections 4(2), 5(2) and 7(1), sections 8, 15 and 29, paragraph 31(2)(a) and sections 49 to 51 and 78; and

  • (b) the definition legal representatives in section 2, subsections 4(2), 5(2) and 7(1), sections 8.1 and 15, paragraph 31(2)(a) and sections 38.1, 49, 78 and 78.2.

  • 2014, c. 39, s. 139
  • 2015, c. 36, s. 64
  • 2018, c. 27, s. 260

Marginal note:Previous version of section 43 applies

  •  (1) Where a conflict, as defined in section 43 as it read immediately before October 1, 1989, exists between an application for a patent in Canada filed before October 1, 1989 (the “earlier application”) and an application for a patent in Canada filed on or after that date (the “later application”) and

    • (a) the later application is filed by 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 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 describing the same invention,

    • (b) the later application is filed within twelve months after the filing of the previously regularly filed application,

    • (c) the applicant in the later application has made a request for priority in respect of that application on the basis of the previously regularly filed application, and

    • (d) the earlier application is filed after the filing of the previously regularly filed application,

    the applicant having the earlier date of invention shall be entitled to a patent and the applications shall be dealt with and disposed of in accordance with section 43, as it read immediately before October 1, 1989.

  • Marginal note:Exception

    (2) Subsection (1) does not apply if

    • (a) the earlier application is filed by 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 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 describing the same invention;

    • (b) the earlier application is filed within twelve months after the filing of the previously regularly filed application mentioned in paragraph (a);

    • (c) the applicant in the earlier application has made a request for priority in respect of that application on the basis of the previously regularly filed application mentioned in paragraph (a); and

    • (d) the previously regularly filed application mentioned in paragraph (a) was filed before the filing of the previously regularly filed application mentioned in subsection (1).

  • 1993, c. 15, s. 55

Marginal note:Applications — filing date October 1, 1989 to before October 1, 1996

 Subject to sections 78.51 and 78.52, an application for a patent whose filing date is on or after October 1, 1989 but before October 1, 1996 shall be dealt with and disposed of in accordance with

  • (a) the provisions of this Act, other than the definition filing date in section 2, subsection 27(7), sections 27.01, 28 and 28.01 and subsection 28.4(6); and

  • (b) subsection 27(2) as it read immediately before October 1, 1996.

  • 1993, c. 15, s. 55
  • 2001, c. 10, s. 4
  • 2014, c. 39, s. 140

Marginal note:Applications — filing date October 1, 1996 to before coming-into-force date

 Subject to sections 78.51 and 78.52, an application for a patent whose filing date is on or after October 1, 1996 but before the coming-into-force date shall be dealt with and disposed of in accordance with the provisions of this Act, other than the definition filing date in section 2, subsection 27(7), sections 27.01, 28 and 28.01 and subsection 28.4(6).

  • 1993, c. 15, s. 55
  • 2001, c. 10, s. 4
  • 2014, c. 39, s. 140

Marginal note:Abandonment before coming-into-force date

 If an application for a patent was deemed to be abandoned under section 73 as it read immediately before the coming-into-force date, that section 73 applies in respect of that abandonment.

  • 2014, c. 39, s. 140

Marginal note:Abandonment — requisition or notice before coming-into-force date

  •  (1) If, on or after the coming-into-force date, an applicant fails to do any act described in paragraph 73(1)(a), (b), (e) or (f), as those paragraphs read immediately before that date, in respect of a requisition made or notice given, as the case may be, before that date, section 73 as it read immediately before that date applies in respect of any abandonment resulting from the failure.

  • Marginal note:Abandonment — section 97 of the Patent Rules

    (2) If, on or after the coming-into-force date, an applicant fails to do any act described in section 97 of the Patent Rules, as that section read immediately before that date, in respect of a requisition of the Commissioner that was given before that date, section 73 as it read immediately before that date applies in respect of any abandonment resulting from the failure.

  • 2014, c. 39, s. 140

Marginal note:Patents — filing date before October 1, 1989

  •  (1) Subject to subsection 78.55(2), any matter arising on or after the coming-into-force date, in respect of a patent granted on the basis of an application whose filing date is before October 1, 1989, shall be dealt with and disposed of in accordance with

    • (a) the provisions of this Act, other than the definitions claim date, filing date and request for priority in section 2, sections 10, 27 to 28.4, 34.1 to 36, 38.2 and 55, paragraphs 55.11(1)(a) and (b) and section 56; and

    • (b) sections 10 and 55 and subsections 61(1) and (3), as they read immediately before October 1, 1989.

  • Marginal note:Special case

    (2) Section 56 of the Patent Act, as it read immediately before October 1, 1989, applies in respect of a purchase, construction or acquisition made before October 1, 1996 of an invention for which a patent is issued on the basis of an application filed before October 1, 1989.

  • 2014, c. 39, s. 140
  • 2018, c. 27, s. 208

Marginal note:Patents — filing date October 1, 1989 to before coming-into-force date

 Subject to subsection 78.55(1) and section 78.56, any matter arising on or after the coming-into-force date in respect of a patent granted on the basis of an application whose filing date is on or after October 1, 1989 but before the coming-into-force date shall be dealt with and disposed of in accordance with the provisions of this Act, other than the definition filing date in section 2 and section 28.

  • 2014, c. 39, s. 140

Marginal note:Application of section 46 — item 31 of Schedule II to Patent Rules

  •  (1) If the time, not including a period of grace, set out in item 31 of Schedule II to the Patent Rules to pay the applicable fee to maintain the rights accorded by a patent in effect ends before the coming-into-force date, section 46 as it read immediately before the coming-into-force date applies in respect of that fee.

  • Marginal note:Application of section 46 — item 32 of Schedule II to Patent Rules

    (2) If the time, not including a period of grace, set out in item 32 of Schedule II to the Patent Rules to pay the applicable fee to maintain the rights accorded by a patent in effect ends before the coming-into-force date, section 46 as it read immediately before the coming-into-force date applies in respect of that fee.

  • 2014, c. 39, s. 140

Marginal note:Non-application of subsection 27.1(4) and section 73.1

 Subsection 27.1(4) and section 73.1 do not apply to a patent that was granted before the coming-into-force date or to a reissued patent if the original patent was granted before that date.

  • 2014, c. 39, s. 140
 
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