Application for Patents (continued)
Marginal note:Invention must not be obvious
28.3 The subject-matter defined by a claim in an application for a patent in Canada must be subject-matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains, having regard to
(a) information disclosed more than one year before the filing 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
(b) information disclosed before the claim date by a person not mentioned in paragraph (a) in such a manner that the information became available to the public in Canada or elsewhere.
- 1993, c. 15, s. 33.
Marginal note:Request for priority
28.4 (1) For the purposes of sections 28.1, 28.2 and 78.3, an applicant for a patent in Canada may request priority in respect of the application on the basis of one or more previously regularly filed applications.
Marginal note:Requirements governing request
(2) The request for priority must be made in accordance with the regulations and the applicant must inform the Commissioner of the filing date, country or office of filing and number of each previously regularly filed application on which the request is based.
Marginal note:Withdrawal of request
(3) An applicant may, in accordance with the regulations, withdraw a request for priority, either entirely or with respect to one or more previously regularly filed applications.
Marginal note:Multiple previously regularly filed applications
(4) Where two or more applications have been previously regularly filed as described in paragraph 28.1(1)(a), subparagraph 28.2(1)(d)(i) or paragraph 78.3(1)(a) or (2)(a), either in the same country or in different countries,
(a) paragraph 28.1(1)(b), subparagraph 28.2(1)(d)(iii) or paragraph 78.3(1)(b) or (2)(b), as the case may be, shall be applied using the earliest filing date of the previously regularly filed applications; and
(b) subsection 28.1(2), subparagraph 28.2(1)(d)(ii) or paragraph 78.3(1)(d) or (2)(d), as the case may be, shall be applied using the earliest filing date of the previously regularly filed applications on the basis of which a request for priority is made.
Marginal note:Withdrawal, etc., of previously regularly filed applications
(5) A previously regularly filed application mentioned in section 28.1 or 28.2 or subsection 78.3(1) or (2) shall, for the purposes of that section or subsection, be considered never to have been filed if
(a) it was filed more than twelve months before the filing date of
(b) before the filing date referred to in paragraph (a), another application
(i) is filed by the person who filed the previously regularly filed application or by the agent, legal representative or predecessor in title of that person,
(ii) is filed in or for the country where the previously regularly filed application was filed, and
(iii) discloses the subject-matter defined by the claim in the application mentioned in paragraph (a); and
(c) on the filing date of the other application mentioned in paragraph (b) or, if there is more than one such application, on the earliest of their filing dates, the previously regularly filed application
- 1993, c. 15, s. 33;
- 2001, c. 34, s. 63.
29 [Repealed, 2017, c. 6, s. 36]
30 [Repealed, 1993, c. 15, s. 35]
Marginal note:Effect of refusal of a joint inventor to proceed
31 (1) Where an invention is made by two or more inventors and one of them refuses to make application for a patent or his whereabouts cannot be ascertained after diligent inquiry, the other inventors or their legal representatives may make application, and a patent may be granted in the name of the inventors who make the application, on satisfying the Commissioner that the joint inventor has refused to make application or that his whereabouts cannot be ascertained after diligent inquiry.
Marginal note:Powers of Commissioner
(2) In any case where
(a) an applicant has agreed in writing to assign a patent, when granted, to another person or to a joint applicant and refuses to proceed with the application, or
(b) disputes arise between joint applicants with respect to proceeding with an application,
the Commissioner, on proof of the agreement to his satisfaction, or if satisfied that one or more of the joint applicants ought to be allowed to proceed alone, may allow that other person or joint applicant to proceed with the application, and may grant a patent to him in such manner that all persons interested are entitled to be heard before the Commissioner after such notice as he may deem requisite and sufficient.
Marginal note:Procedure when one joint applicant retires
(3) Where an application is filed by joint applicants and it subsequently appears that one or more of them has had no part in the invention, the prosecution of the application may be carried on by the remaining applicant or applicants on satisfying the Commissioner by affidavit that the remaining applicant or applicants is or are the sole inventor or inventors.
Marginal note:Joining applicants
(4) Where an application is filed by one or more applicants and it subsequently appears that one or more further applicants should have been joined, the further applicant or applicants may be joined on satisfying the Commissioner that he or they should be so joined, and that the omission of the further applicant or applicants had been by inadvertence or mistake and was not for the purpose of delay.
Marginal note:To whom granted
(5) Subject to this section, in cases of joint applications, the patent shall be granted in the names of all the applicants.
(6) An appeal lies to the Federal Court from the decision of the Commissioner under this section.
- R.S., c. P-4, s. 33;
- R.S., c. 10(2nd Supp.), s. 64.
32 Any person who has invented any improvement on any patented invention may obtain a patent for the improvement, but he does not thereby obtain the right of making, vending or using the original invention, nor does the patent for the original invention confer the right of making, vending or using the patented improvement.
- R.S., c. P-4, s. 34.
33 and 34 [Repealed, 1993, c. 15, s. 36]
Filing of Prior Art
34.1 (1) Any person may file with the Commissioner prior art, consisting of patents, applications for patents open to public inspection and printed publications, that the person believes has a bearing on the patentability of any claim in an application for a patent.
(2) A person who files prior art with the Commissioner under subsection (1) shall explain the pertinency of the prior art.
- R.S., 1985, c. 33 (3rd Supp.), s. 11;
- 1993, c. 15, s. 37.
Marginal note:Request for examination
35 (1) The Commissioner shall, on the request of any person made in such manner as may be prescribed and on payment of a prescribed fee, cause an application for a patent to be examined by competent examiners to be employed in the Patent Office for that purpose.
Marginal note:Required examination
(2) The Commissioner may by notice require an applicant for a patent to make a request for examination pursuant to subsection (1) or to pay the prescribed fee within the time specified in the notice, but the specified time may not exceed the time provided by the regulations for making the request and paying the fee.
(3) and (4) [Repealed, 1993, c. 15, s. 38]
- R.S., 1985, c. P-4, s. 35;
- R.S., 1985, c. 33 (3rd Supp.), s. 12;
- 1993, c. 15, s. 38.
- Date modified: