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Patent Act (R.S.C., 1985, c. P-4)

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Act current to 2019-11-19 and last amended on 2019-10-30. Previous Versions

Application for Patents (continued)

Marginal note:Claim date

  •  (1) The date of a claim in an application for a patent in Canada (the “pending application”) is the filing date of the application, unless

    • (a) the pending application is filed by

      • (i) 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

      • (ii) 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;

    • (b) the filing date of the pending application is within twelve months after the filing date of the previously regularly filed application; and

    • (c) the applicant has made a request for priority on the basis of the previously regularly filed application.

  • Marginal note:Claims based on previously regularly filed applications

    (2) In the circumstances described in paragraphs (1)(a) to (c), the claim date is the filing date of the previously regularly filed application.

  • 1993, c. 15, s. 33
  • 2014, c. 39, s. 122(F)

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

  •  (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.

  • 1993, c. 15, s. 33
  • 2014, c. 39, s. 123

Marginal note:Invention must not be obvious

 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 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

  • (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
  • 2014, c. 39, s. 124

Marginal note:Request for priority

  •  (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 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) Except for the purposes of subsection 10(3), 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: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) If 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 or for the same country or in or for 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) 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:

      • (i) the pending application, in the case of section 28.1,

      • (ii) the co-pending application, in the case of section 28.2,

      • (iii) the later application, in the case of subsection 78.3(1), or

      • (iv) the earlier application, in the case of subsection 78.3(2);

    • (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

      • (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

      • (i) has been withdrawn, abandoned or refused without having been opened to public inspection and without leaving any rights outstanding, and

      • (ii) has not served as a basis for a request for priority in any country, including Canada.

  • 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.

  • 1993, c. 15, s. 33
  • 2001, c. 34, s. 63
  • 2014, c. 39, s. 125
  • 2015, c. 36, s. 57
  • 2018, c. 27, s. 206
 
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