Getting A Patent In Canada – The Patent Law Treaty (PLT), administered by the World Intellectual Property Organization (WIPO), was adopted on 31 May 2000 with the aim of streamlining and streamlining formal procedures with respect to patent applications and patents and making such procedures more user-friendly. Friendly Canada signed the PLT on May 21, 2001 and ratified the treaty on July 30, 2019.
It has come into effect from today. To help ease the transition, we’ve provided a brief summary of the more significant changes to Canadian patent practice and procedure that are now in effect.
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If a PCT application with an international filing date on or after October 30, 2019 enters the Canadian national phase more than 30 months after the earliest priority date, a reinstatement fee of CAD $200 must be paid and the applicant must submit (1) a request. The applicant’s rights will be restored and (2) a statement of failure to meet the 30-month deadline. In no event may a PCT application enter the Canadian national phase more than 42 months after the earliest priority date.
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Certified copies of priority documents must be filed with the Canadian Patent Office or made available from the WIPO Digital Access Service in Canadian patent applications filed on or after October 30, 2019. Attested copies of preference documents will be required only at the national stage. PCT applications if the international filing date is on or after 30 October 2019 and a certified copy has not been submitted during the international phase.
Priority restoration may be available on the “redundant” standard in Canadian patent applications filed on or after October 30, 2019, or in the national phase of PCT applications with international filing dates on or after October 30, 2019.
If a Canadian patent application is filed on or after October 30, 2019, a filing date will be granted based on the specification filed in a foreign language, without payment of a filing fee. An English or French translation and filing fee may be submitted later. But in the case of PCT national phase entry in Canada the national phase entry fee and the English or French translation of the foreign-language specification are still 30 months from the earliest priority date.
The application filing date can now be obtained on weekends, holidays, or other days when the Patent Office is closed to the public, by filing the application electronically.
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If the Canadian application is filed on or after October 30, 2019, the application may be corrected immediately after filing by adding the missing part of the specification or by adding a drawing from the priority application.
Anyone can now pay maintenance fee on pending application. Failure to pay the arrears of maintenance fee and late fee within two months of receipt of late notice and within six months of the original due date will result in cancellation of the application. The application may be reinstated within 12 months from the date of abandonment, provided the Commissioner of Patents determines that the failure to pay the maintenance fee was in spite of the “reasonable care” required by the circumstances. Third-party right to practice the invention starting six months after the expiry of the due maintenance fee deadline, regardless of whether the application has been abandoned or not. A similar arrangement applies to maintenance fees for issued patents.
If the examination request and fee are not submitted by the original deadline, the Patent Office will issue a late notice. If the examination request, examination fee and late fee are not submitted within two months from the date of notice, the application will be cancelled. An application may be reinstated within 12 months from the date of abandonment, but if more than six months have passed since the original deadline, the application may be reinstated only if the Commissioner of Patents fails to request an examination and pay the examination fee. Despite the “due care” required by the circumstances. Third-party rights to practice the invention begin six months after the expiration of the missed examination request deadline, regardless of whether the application is abandoned or not.
The deadline for requesting an examination has been shortened from five to four years in applications filed on or after October 30, 2019, or in the national phase of PCT applications with an international filing date on or after October 30, 2019. The deadline has been shortened from six to four months both for responding to examiner’s reports issued on or after today’s date and for payment of final fees (ie issue fees) in response to allowance notices issued on or after today’s date.
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If notice of allowance issue is received on or after today’s date, pages of sequence listings in electronic form are not included in the CAD $6.00 per page additional page charge calculation over 100 pages of description, claims and drawings.
If a Notice of Allowance Issue is received on or after today’s date, the case may be reopened upon a request to withdraw the Notice of Allowance and a request to pay the CAD $400 government fee before payment of the final fee. But if the application is abandoned and subsequently reinstated due to non-payment of the final fee, only limited amendments are permitted to correct the “obvious” error, and such amendment must be submitted later on reinstatement and payment of the final fee.
Applicants or patentees can now request a record of transfer of an application or patent without submitting an assignment document. Conversely, a transfer at the request of the transferor shall be recorded only after proof of transfer satisfactory to the Commissioner has been submitted. The same government fee of $100 applies in both cases.
The rules in force prior to October 30, 2019 provided only limited guidance with respect to correcting errors in patent applications or granted patents. Requests for correction of “clerical” errors were often made under Section 8 of the Patents Act, a provision which has been repealed. Canadian courts have held that a clerical error under section 8 is “an error arising in the mechanical process of writing or transcribing.” Even if an error was determined to be clerical, the CIPO had discretion whether to enter a correction, taking into account potential prejudice to the public. There was no time limit under Section 8 and clerical errors could be corrected before or after the grant. Under the new rules, this broad general procedure for correcting clerical errors has been replaced by a new rule that only establishes deadlines for correcting specific errors. If the error correction deadline is missed, correction will not be possible. New Rules Resolve: (1) Errors in Priority Claims; (2) errors in the identity or name of inventors and applicants; (3) errors made by the Patent Office in the patent (eg, name of owner or inventor, priority rights) or in the specification or drawings; and (4) mistakes made by the patentee in the patentee’s or inventor’s name or in the specification or drawings.
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For a detailed review and to view all of our articles and resources addressing the new regulations, please visit our Special Patent Resources page.
If you have any questions about these changes and how they may affect you or your organization, please contact a member of our Patent Practice Group.
The former is intended as a timely update of Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please contact our offices directly. The PAT Act in Canada is the legal system governing the granting of PATs for invitations to Canada and the enforcement of these rights in Canada.
A ‘Pat’ is a government grant that gives the exhibitor – as well as their heirs, executors and assigns – the exclusive right in Canada to make, use and/or sell the claimed invitation during the term of the Pat. decision
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Issuing Canadian PATs is under the exclusive jurisdiction of the Canadian federal government and is governed by the federal PAT Act, the PAT Regulations and various international treaties and regulations thereunder. Enforcement of Canadian PATs is the responsibility of Canadian federal courts and provincial/territorial courts.
To be flashy, an invitation must be novel. That is, the invocation must not have been described or claimed in a previously filed third-party Canadian patent application and must not have been previously publicly disclosed by a third party, anywhere in the world. The test of novelty is whether a single, publicly disclosed example of the prior art “contains all the information necessary for practical purposes to produce the claimed invitation without the exercise of any considerable skill”.
If a third party has previously filed a Canadian patent application that discloses an invocation, or a third party document or device previously disclosed an invocation anywhere in the world, the Canadian patent application for that invention lacks novelty and is invalid. Lack of novelty is termed as “anticipation”. For example, if a
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