Patent Act (R.S.C., 1985, c. P-4)

Short Title

Marginal note:Short title

1 This Act may be cited as the Patent Act.

Interpretation

Marginal note:Definitions

2 In this Act, except as otherwise provided,

applicant

applicant includes an inventor and the legal representatives of an applicant or inventor; (demandeur)

certificate of supplementary protection

certificate of supplementary protection means a certificate issued by the Minister of Health under section 113; (certificat de protection supplémentaire)

claim date

claim date means the date of a claim in an application for a patent in Canada, as determined in accordance with section 28.1;

Commissioner

Commissioner means the Commissioner of Patents; (commissaire)

country

country includes a WTO Member, as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; (pays)

filing date

filing date means the date on which an application for a patent in Canada is filed, as determined in accordance with section 28 or subsection 28.01(2) or 36(4); (date de dépôt)

holder

holder means, with respect to a certificate of supplementary protection, the person for the time being that is entitled to the benefit of the certificate; (titulaire)

invention

invention means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter; (invention)

legal representatives

legal representatives includes heirs, executors, administrators of the estate, liquidators of the succession, guardians, curators, tutors, transferees and all other persons claiming through applicants for patents and patentees of inventions or through holders of certificates of supplementary protection; (représentants légaux)

Minister

Minister means the Minister of Industry or such other member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre)

patent

patent means letters patent for an invention; (brevet)

patent agent

patent agent has the same meaning as in section 2 of the College of Patent Agents and Trademark Agents Act; (agent de brevets)

patentee

patentee means the person for the time being entitled to the benefit of a patent; (breveté ou titulaire d’un brevet)

predecessor in title

predecessor in title includes any person through whom an applicant for a patent in Canada claims the right to the patent; (prédécesseur en droit)

prescribed

prescribed means prescribed by rules or regulations of the Governor in Council and, in the case of a fee, includes a fee determined in the manner prescribed; (réglementaire)

prescribed fee

prescribed fee[Repealed, R.S., 1985, c. 33 (3rd Supp.), s. 1]

priority date

priority date[Repealed, 1993, c. 15, s. 26]

regulation

regulation includes a rule or form; (règlement)

regulation

regulation and rule[Repealed, 2017, c. 6, s. 32]

request for priority

request for priority means a request under section 28.4; (demande de priorité)

rule

rule includes a regulation or form. (règle)

work on a commercial scale

work on a commercial scale[Repealed, 1993, c. 44, s. 189]

Her Majesty

Marginal note:Binding on Her Majesty

2.1 This Act is binding on Her Majesty in right of Canada or a province.

Patent Office and Officers

Marginal note:Patent Office

3 There shall be attached to the Department of Industry, or to such other department of the Government of Canada as may be determined by the Governor in Council, an office called the Patent Office.

Marginal note:Commissioner of Patents

• 4 (1) The Governor in Council may appoint a Commissioner of Patents who shall, under the direction of the Minister, exercise the powers and perform the duties conferred and imposed on that officer by or pursuant to this Act.

• Marginal note:Duties of Commissioner

  (2) The Commissioner shall receive all applications, fees, and documents relating to patents, shall perform and do all acts and things requisite for the granting and issuing of patents, shall have the charge and custody of the books, records and other things belonging to the Patent Office and shall have, for the purposes of this Act, all the powers that are or may be given by the Inquiries Act to a commissioner appointed under Part II of that Act.

• Marginal note:Tenure of office and salary

  (3) The Commissioner holds office during pleasure and shall be paid such annual salary as may be determined by the Governor in Council.

• Marginal note:Delegation

  (4) The Commissioner may, after consultation with the Minister, delegate to any person he deems qualified any of his powers, duties and functions under this Act, except the power to delegate under this subsection.

• Marginal note:Appeal

  (5) Any decision under this Act of a person authorized to make the decision pursuant to subsection (4) may be appealed in the like manner and subject to the like conditions as a decision of the Commissioner under this Act.

Marginal note:Assistant Commissioner

• 5 (1) An Assistant Commissioner of Patents may be appointed in the manner authorized by law and shall be a technical officer experienced in the administration of the Patent Office.

• Marginal note:Absence, inability to act or vacancy

  (2) If the Commissioner is absent or unable to act or the office of Commissioner is vacant, the Assistant Commissioner or, if at the same time the Assistant Commissioner is absent or unable to act or the office of Assistant Commissioner is vacant, another officer designated by the Minister may exercise the powers and shall perform the duties of the Commissioner.

Marginal note:Staff

6 There may be appointed in the manner authorized by law such principal examiners, examiners, associate examiners and assistant examiners, clerks, stenographers and other assistants as are necessary for the administration of this Act.

Marginal note:Officers of Patent Office not to deal in patents, etc.

• 7 (1) No officer or employee of the Patent Office shall buy, sell, acquire or traffic in any invention, patent, right to a patent, certificate of supplementary protection or right to such a certificate, or any interest in any of them, and every purchase, sale, acquisition or transfer of any of them, or of any interest in any of them, made by or to such an officer or employee is void or, in Quebec, null.

• Marginal note:Restriction

  (2) Subsection (1) does not apply to a sale by an original inventor or to an acquisition under the last will, or by the intestacy, of a deceased person.

8 [Repealed, 2015, c. 36, s. 51]

Marginal note:Electronic form and means

• 8.1 (1) Subject to the regulations, any document, information or fee that is submitted to the Commissioner or the Patent Office under this Act may be submitted in any electronic form, and by any electronic means, that is specified by the Commissioner.

• Marginal note:Collection, storage, etc.

  (2) Subject to the regulations, the Commissioner and the Patent Office may use electronic means to create, collect, receive, store, transfer, distribute, publish, certify or otherwise deal with documents or information or to seal a patent or other document.

• Marginal note:Definition of electronic

  (3) In this section, electronic, in reference to a form or means, includes optical, magnetic and other similar forms or means.

8.2 [Repealed, 2014, c. 39, s. 117]

Marginal note:Destroyed or lost patents

9 If any patent is destroyed or lost, a certified copy may be issued in lieu thereof on payment of the prescribed fee.

Marginal note:Inspection by the public

• 10 (1) Subject to subsections (2) to (6) and section 20, all patents, applications for patents and documents relating to patents or applications for patents that are in the possession of the Patent Office shall be open to public inspection at the Patent Office, under any conditions that may be prescribed.

• Marginal note:Confidentiality period

  (2) Except with the approval of the applicant, an application for a patent, or a document relating to the application, shall not be open to public inspection before a confidentiality period of 18 months has expired.

• Marginal note:Beginning of confidentiality period

  (3) The confidentiality period begins on the filing date of the application or, where a request for priority has been made in respect of the application, it begins on the earliest filing date of any previously regularly filed application on which the request is based.

• Marginal note:Withdrawal of request

  (4) Where a request for priority is withdrawn on or before the prescribed date, it shall, for the purposes of subsection (3) and to the extent that it is withdrawn, be considered never to have been made.

• Marginal note:Withdrawn applications

  (5) An application shall not be open to public inspection if it is withdrawn in accordance with the regulations on or before the prescribed date.

• Marginal note:Prescribed date

  (6) A prescribed date referred to in subsection (4) or (5) must be no later than the date on which the confidentiality period expires.

11 [Repealed, 2015, c. 36, s. 52]

Rules and Regulations

Marginal note:Rules and regulations

• 12 (1) The Governor in Council may make rules or regulations

  • (a) respecting the form and contents of applications for patents;

  • (a.1) defining drawing for the purposes of this Act and respecting the circumstances in which certain drawings may be furnished as part of applications for patents;

  • (a.2) respecting abstracts in applications for patents, including authorizing the Commissioner to amend or replace abstracts;

  • (a.3) respecting the consequences of a failure to comply with a notice given under subsection 27(7);

  • (a.4) respecting the processing and examination of applications for patents;

  • (b) respecting the form of the Register of Patents and of the indexes thereto;

  • (c) respecting the registration of transmissions, disclaimers, judgments or other documents relating to a patent or an application for a patent;

  • (c.1) respecting the recording of transfers of patents or applications for patents;

  • (d) respecting the form and contents of any certificate issued pursuant to this Act;

  • (e) prescribing the fees or the manner of determining the fees that may be charged in respect of the filing of applications for patents or the taking of other proceedings under this Act or under any rule or regulation made pursuant to this Act, or in respect of any services or the use of any facilities provided thereunder by the Commissioner or any person employed in the Patent Office;

  • (f) prescribing the fees or the manner of determining the fees that shall be paid to maintain in effect an application for a patent or to maintain the rights accorded by a patent;

  • (g) respecting the payment of any prescribed fees including the time when and the manner in which such fees shall be paid, the additional fees that may be charged for the late payment of such fees and the circumstances in which any fees previously paid may be refunded in whole or in part;

  • (g.1) authorizing the Commissioner to waive, subject to any prescribed terms and conditions, the payment of a fee if the Commissioner is satisfied that the circumstances justify it;

  • (h) for carrying into effect the terms of any treaty, convention, arrangement or engagement that subsists between Canada and any other country;

  • (i) for carrying into effect, notwithstanding anything in this Act, the Patent Cooperation Treaty done at Washington on June 19, 1970, including any amendments, modifications and revisions made from time to time to which Canada is a party;

  • (i.1) for carrying into effect the Patent Law Treaty, done at Geneva on June 1, 2000, including any amendments and revisions made from time to time to which Canada is a party;

  • (j) [Repealed, 2018, c. 27, s. 250]

  • (j.001) [Repealed, 2018, c. 27, s. 259]

  • (j.002) [Repealed, 2018, c. 27, s. 259]

  • (j.01) respecting the circumstances in which an applicant, patentee or other person may or must be represented in business before the Patent Office by a patent agent whose licence is not suspended or by another person;

  • (j.1) respecting the submission, including in electronic form and by electronic means, of documents and information to the Commissioner or the Patent Office, including the time at which they are deemed to be received by the Commissioner or the Patent Office;

  • (j.2) respecting the use of electronic means for the purposes of subsection 8.1(2);

  • (j.3) respecting the withdrawal of an application for a patent and, for the purposes of subsections 10(4) and (5), prescribing the date, or the manner of determining the date, on or before which a request for priority or an application for a patent is to be withdrawn;

  • (j.31) respecting additions to the specification and additions of drawings for the purposes of subsection 28.01(1);

  • (j.4) respecting requests for priority, including

    • (i) the period within which priority is to be requested,

    • (ii) the information and documents that are to be submitted in support of requests for priority,

    • (iii) the period within which that information and those documents are to be submitted,

    • (iv) the withdrawal of requests for priority, and

    • (v) the correction of requests for priority or of information or documents submitted in support of them and the effect of corrections on the duration of the confidentiality period referred to in subsection 10(3);

  • (j.41) respecting the application of subsection 28.4(6);

  • (j.5) respecting divisional applications, including the time period within which divisional applications may be filed and the persons who may file divisional applications;

  • (j.51) defining one invention for the purposes of section 36;

  • (j.6) respecting the deposit of biological material for the purposes of section 38.1;

  • (j.7) respecting the manner in which amendments may be made to specifications or drawings furnished as part of an application for a patent;

  • (j.71) respecting amendments to the specification or drawings for the purposes of subsection 38.2(1);

  • (j.72) respecting the replacement of all or part of the text matter of a specification or drawing contained in an application for a patent that is in a language other than English or French with a translation into English or French, for the purposes of paragraph 38.2(3)(b);

  • (j.73) respecting the conditions set out in subsection 46(5), including the circumstances in which subparagraph 46(5)(a)(ii) and paragraph 46(5)(b) do not apply;

  • (j.74) establishing a period for the purposes of subsection 55.11(2);

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

  • (j.76) respecting the reinstatement of applications for patents under subsection 73(3), including the circumstances in which subparagraph 73(3)(a)(ii) and paragraph 73(3)(b) do not apply;

  • (j.77) respecting communications between the Commissioner and any other person;

  • (j.8) authorizing the Commissioner to, during or after the end of the time period fixed under this Act in respect of any business before the Patent Office, for doing anything, extend that time period, subject to any prescribed terms and conditions, if the Commissioner considers that the circumstances justify the extension;

  • (j.81) respecting the correction of obvious errors in documents submitted to the Commissioner or the Patent Office or in patents or other documents granted or issued under this Act, other than under sections 106 to 134, including

    • (i) the determination of what constitutes an obvious error, and

    • (ii) the effect of the correction;

  • (k) prescribing any other matter that by any provision of this Act is to be prescribed; and

  • (l) generally, for carrying into effect the objects and purposes of this Act or for ensuring the due administration thereof by the Commissioner and other officers and employees of the Patent Office.

• Marginal note:Effect

  (2) Any rule or regulation made by the Governor in Council has the same force and effect as if it had been enacted herein.