Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)

Assented to 2018-12-13

PART 4Various Measures (continued)

DIVISION 7Intellectual Property Strategy (continued)

SUBDIVISION AR.S., c. P-4Patent Act (continued)

 Section 140 of the Act is amended by replacing the section 78.53 that it enacts with the following:

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

  • 78.53 (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.

2017, c. 6Consequential Amendment to the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act

 Subsection 135(11) of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act is repealed.

Coordinating Amendments

Marginal note:2014, c. 39

  •  (1) In this section, other Act means the Economic Action Plan 2014 Act, No. 2.

  • (2) If section 139 of the other Act comes into force before section 196 of this Act, then that section 196 is deemed never to have come into force and is repealed.

  • (3) If section 139 of the other Act comes into force on the same day as section 196 of this Act, then that section 196 is deemed to have come into force before that section 139.

  • (4) If subsection 118(5) of the other Act comes into force before section 204 of this Act, then

    • (a) that section 204 is deemed never to have come into force and is repealed; and

    • (b) paragraph 12(1)(j.75) of the Patent Act is replaced with the following:

      • (j.75) establishing a period for the purposes of subsections 55.11(3), (7) and (9);

  • (5) If subsection 118(5) of the other Act comes into force on the same day as section 204 of this Act, then that section 204 is deemed to have come into force before that subsection 118(5).

  • (6) If section 119 of the other Act comes into force before section 205 of this Act, then

    • (a) that section 205 is deemed never to have come into force and is repealed; and

    • (b) section 15.1 of the Patent Act is repealed.

  • (7) If section 119 of the other Act comes into force on the same day as section 205 of this Act, then that section 205 is deemed to have come into force before that section 119.

  • (8) If subsection 125(1) of the other Act comes into force before section 206 of this Act, then

    • (a) that section 206 is deemed never to have come into force and is repealed; and

    • (b) subsection 28.4(2.1) of the Patent Act is replaced by the following:

      • 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).

  • (9) If subsection 125(1) of the other Act comes into force on the same day as section 206 of this Act, then that section 206 is deemed to have come into force before that subsection 125(1).

  • (10) If section 136 of the other Act comes into force before section 207 of this Act, then

    • (a) that section 207 is deemed never to have come into force and is repealed;

    • (b) the portion of subsection 55.11(1) of the Patent Act before paragraph (a) is replaced by the following:

      Marginal note:Exception — third party rights

      • 55.11 (1) This section applies only in respect of the following patents and certificates of supplementary protection that set out the following patents:

    • (c) subsections 55.11(2) to (10) of the Patent Act are replaced by the following:

      • Marginal note:Act committed during period

        (2) If, during a period that is established by regulations made under paragraph 12(1)(j.74) that relates to a patent, a person, in good faith, committed an act that would otherwise constitute an infringement of that patent, that act is not an infringement of the patent.

      • Marginal note:Act committed after period

        (3) Subject to subsection (4), if — during a period established by regulations made under paragraph 12(1)(j.75) that relates to a patent — a person, in good faith, committed an act that would otherwise constitute an infringement of that patent or made serious and effective preparations to commit that act, it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the person commits the act after that period.

      • Marginal note:Transfer

        (4) If the act referred to in subsection (3) is committed or the preparations to commit it are made in the course of a business and that business, or the part of that business in the course of which the act was committed or the preparations were made, is subsequently transferred,

        • (a) subsection (3) or paragraph (b), as the case may be, does not apply in respect of an act committed by the transferor after the transfer; and

        • (b) it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the transferee commits the act after the transfer.

      • Marginal note:Use of sale of article

        (5) The use or sale of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if that article was acquired, directly or indirectly, from a person who, at the time they disposed of it, could, under subsection (2) or (3) or paragraph (4)(b), sell the article without infringing the patent or the certificate.

      • Marginal note:Use of service

        (6) The use of a service is not an infringement of a patent if the service is provided by a person who, under subsection (2) or (3) or paragraph (4)(b), is able to provide it without infringing the patent.

      • Marginal note:User of article

        (7) Subject to subsection (8), the use of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if the article was acquired, directly or indirectly, from a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, in good faith, made or sold, or made serious and effective preparations to make or sell, an article that is substantially the same as the one used, for that use.

      • Marginal note:Transfer

        (8) If the making or selling referred to in subsection (7) was done or the preparations to do so were made in the course of a business and that business, or the part of that business in the course of which the making or selling was done or the preparations were made, is subsequently transferred, then

        • (a) subsection (7) or paragraph (b), as the case may be, does not apply in respect of an article that is made or sold by the transferor after the transfer; and

        • (b) it is not an infringement of a patent or a certificate of supplemental protection referred to in subsection (7) to use an article for the use referred to in that subsection if it was made or sold for that use by the transferee after the transfer.

      • Marginal note:Use of service

        (9) Subject to subsection (10), the use of a service is not an infringement of a patent if the service is provided by a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, provided, or made serious and effective preparations to provide, a service that is substantially the same as the one used, for that use.

      • Marginal note:Transfer

        (10) If, during the period referred to in subsection (9), the service was provided or the preparations to provide it were made in the course of a business and that business, or the part of that business in the course of which the service was provided or the preparations to do so were made, is subsequently transferred, then, after the transfer

        • (a) the transferor is deemed to no longer be the person referred to in subsection (9) for the purposes of that subsection; and

        • (b) the transferee is deemed to be the person who provided the service for the purposes of subsection (9).

  • (11) If section 136 of the other Act and section 207 of this Act come into force on the same day, then that section 207 is deemed to have come into force before that section 136.

  • (12) If section 140 of the other Act comes into force before section 208 of this Act, then

    • (a) that section 208 is deemed never to have come into force and is repealed; and

    • (b) section 78.53 of the Patent Act is replaced by the following:

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

      • 78.53 (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.

  • (13) If section 140 of the other Act and section 208 of this Act come into force on the same day, then that section 208 is deemed to have come into force before that section 140.

 
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