• b) à cette date, il s’est écoulé, depuis la date de dépôt de la demande déposée antérieurement, au plus douze mois;

• (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;

• (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

• (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: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: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).

BIOLOGICAL MATERIALS

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.

TRANSFERS

Marginal note:Patent, application and right or interest in invention

• 49. (1) A patent, an application for a patent, and the right or interest in an invention are transferable, in whole or in part.

• Marginal note:Recording of transfer of application

  (2) The Commissioner shall, subject to the regulations, record the transfer of an application for a patent on the request of the applicant or, upon receipt of evidence satisfactory to the Commissioner of the transfer, on the request of a transferee of the application.

• Marginal note:Recording of transfer of patent

  (3) The Commissioner shall, subject to the regulations, record the transfer of a patent on the request of the patentee or, upon receipt of evidence satisfactory to the Commissioner of the transfer, on the request of a transferee of the patent.

• Marginal note:Transfer void

  (4) A transfer of a patent that has not been recorded is void against a subsequent transferee if the transfer to the subsequent transferee has been recorded.

• Marginal note:Removal of recording

  (5) The Commissioner shall remove the recording of the transfer of an application for a patent or the transfer of a patent on receipt of evidence satisfactory to the Commissioner that the transfer should not have been recorded.

• Marginal note:Limitation

  (6) The Commissioner is not authorized to remove the recording of a transfer of a patent for the reason only that the transferor had previously transferred the patent to another person.

• Marginal note:Liability damage before patent is granted

  (2) A person is liable to pay reasonable compensation to a patentee and to all persons claiming under the patentee for any damage sustained by the patentee or by any of those persons by reason of any act on the part of that person, after the specification contained in the application for the patent became open to public inspection, in English or French, under section 10 and before the grant of the patent, that would have constituted an infringement of the patent if the patent had been granted on the day the specification became open to public inspection, in English or French, under that section.

Marginal note:Exception — third party rights

• 55.11 (1) This section applies only in respect of the following patents:

  • (a) a patent that was granted on the basis of an application

    • (i) in respect of which the prescribed fee referred to in subsection 27.1(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 27.1(3),

    • (ii) in respect of which a request referred to in subsection 35(2) was not made and the prescribed fee referred to in that subsection was not paid within the prescribed time referred to in that subsection, without taking into account subsection 35(4), or

    • (iii) that was deemed abandoned under paragraph 73(1)(a), (b), (e) or (f) or subsection 73(2);

  • (b) a patent that was granted on the basis of a divisional application that

    • (i) results, under subsection 36(2) or (2.1), from the division of an original application that is an application referred to in this paragraph or paragraph (a), and

    • (ii) was filed after the beginning of the period referred to in subsection (2) or, if it is earlier, the period referred to in subsection (3), that applies to the patent granted on the basis of the original application or that would apply to that patent if it were granted; and

  • (c) a patent in respect of which the prescribed fee referred to in subsection 46(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 46(3).

• Marginal note:Act committed during period

  (2) No action for infringement of a patent lies against a person in respect of an act that would otherwise constitute an infringement of the patent if that act is committed in good faith by the person during a period that is established by regulations made under paragraph 12(1)(j.74).

• Marginal note:Act committed after period or transfer

  (3) If, during a period established by regulations made under paragraph 12(1)(j.75), a person, in good faith, committed an act that would otherwise constitute an infringement of a patent or made serious and effective preparations to commit that act,

  • (a) no action for infringement of the patent lies against the person in respect of that act if the person commits it after that period but before the person transfers the business or the part of the business in the course of which the act was committed or the preparations were made; and

  • (b) no action for infringement of the patent lies, if the business or the part of the business in the course of which the act was committed or the preparations were made is transferred, against the transferee in respect of that act if the transferee commits it after the transfer but before the transferee subsequently transfers the business or the part of the business.

• Marginal note:Subsequent acquisition

  (4) No action for infringement of a patent lies against a person in respect of the use or sale of a specific article, machine, manufacture or composition of matter if the person acquired the specific article, machine, manufacture or composition of matter, directly or indirectly, from a person who made it and against whom no action for infringement of the patent lies under subsection (2) or (3) for making that specific article, machine, manufacture or composition of matter.