Patent Act (R.S.C., 1985, c. P-4)

Marginal note:Advisory committee

• 21.18 (1) The Minister and the Minister of Health shall establish, within three years after the day this section comes into force, an advisory committee to advise them on the recommendations that they may make to the Governor in Council respecting the amendment of Schedule 1.

• Marginal note:Standing committee

  (2) The standing committee of each House of Parliament that normally considers matters related to industry shall assess all candidates for appointment to the advisory committee and make recommendations to the Minister and the Minister of Health on the eligibility and qualifications of those candidates.

Marginal note:Website for notices to Canada

21.19 The person designated by the Governor in Council for the purpose of this section must maintain a website on which is set out a copy of every notice referred to in subparagraphs 21.04(3)(d)(ii) and (v) that is provided to the Government of Canada through diplomatic channels by a country that is not a WTO Member. The copy must be added to the website as soon as possible after the notice has been provided to the Government of Canada.

Marginal note:Review

• 21.2 (1) A review of sections 21.01 to 21.19 and their application must be completed by the Minister two years after this section comes into force.

• Marginal note:Tabling of report

  (2) The Minister must cause a report of the results of the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report has been completed.

Patents Relating to Nuclear Energy

Marginal note:Communication to Canadian Nuclear Safety Commission

22 Any application for a patent for an invention that, in the opinion of the Commissioner, relates to the production, application or use of nuclear energy shall, before it is dealt with by an examiner appointed pursuant to section 6 or is open to inspection by the public under section 10, be communicated by the Commissioner to the Canadian Nuclear Safety Commission.

General

Marginal note:Patented invention in vessels, aircraft, etc., of any country

23 No patent shall extend to prevent the use of any invention in any ship, vessel, aircraft or land vehicle of any country entering Canada temporarily or accidentally, if the invention is employed exclusively for the needs of the ship, vessel, aircraft or land vehicle, and not so used for the manufacture of any goods to be sold within or exported from Canada.

24 [Repealed, R.S., 1985, c. 33 (3rd Supp.), s. 6]

Marginal note:Cost of proceedings before the court

25 In all proceedings before any court under this Act, the costs of the Commissioner are in the discretion of the court, but the Commissioner shall not be ordered to pay the costs of any other of the parties.

Marginal note:Annual report

26 The Commissioner shall, in each year, cause to be prepared and laid before each House of Parliament a report of the Commissioner’s activities under this Act.

• 26.1 (1) [Repealed, 2015, c. 36, s. 56]

• Marginal note:Publication and printing of documents

  (2) The Commissioner may publish any document open to the inspection of the public under section 10 and may print or cause to be printed, for distribution or sale, any such document.

Application for Patents

Marginal note:Commissioner may grant patents

• 27 (1) The Commissioner shall grant a patent for an invention to the inventor or the inventor’s legal representative if an application for the patent in Canada is filed in accordance with this Act and all other requirements for the issuance of a patent under this Act are met.

• Marginal note:Application requirements

  (2) The prescribed application fee must be paid and the application must be filed in accordance with the regulations by the inventor or the inventor’s legal representative and the application must contain a petition and a specification of the invention.

• Marginal note:Specification

  (3) The specification of an invention must

  • (a) correctly and fully describe the invention and its operation or use as contemplated by the inventor;

  • (b) set out clearly the various steps in a process, or the method of constructing, making, compounding or using a machine, manufacture or composition of matter, in such full, clear, concise and exact terms as to enable any person skilled in the art or science to which it pertains, or with which it is most closely connected, to make, construct, compound or use it;

  • (c) in the case of a machine, explain the principle of the machine and the best mode in which the inventor has contemplated the application of that principle; and

  • (d) in the case of a process, explain the necessary sequence, if any, of the various steps, so as to distinguish the invention from other inventions.

• Marginal note:Claims

  (4) The specification must end with a claim or claims defining distinctly and in explicit terms the subject-matter of the invention for which an exclusive privilege or property is claimed.

• Marginal note:Separate claims

  (5) For greater certainty, if a claim defines the subject-matter of an invention in the alternative, each alternative is a separate claim for the purposes of sections 2, 28.1 to 28.3, 56 and 78.3.

• Marginal note:Drawings

  (5.1) In the case of a machine, or in any other case in which an invention admits of illustration by means of drawings, the applicant shall, as part of the application, furnish drawings of the invention that clearly show all parts of the invention.

• Marginal note:Particulars

  (5.2) Each drawing is to include references corresponding with the specification. The Commissioner may, as the Commissioner sees fit, require further drawings or dispense with the requirement to furnish any drawing.

• Marginal note:Requirements not met

  (6) If, on its filing date, an application does not meet the requirements of subsection (2), other than the payment of the application fee, the Commissioner shall, by notice, require the applicant to meet those requirements on or before the prescribed date.

• Marginal note:Application fee not paid

  (7) If, on the filing date of the application, the application fee is not paid, the Commissioner shall, by notice, require the applicant to pay the application fee and the prescribed late fee on or before the prescribed date.

• Marginal note:What may not be patented

  (8) No patent shall be granted for any mere scientific principle or abstract theorem.

Marginal note:Reference to previously filed application

• 27.01 (1) Subject to the prescribed requirements and within the prescribed period, an applicant may submit to the Commissioner a statement to the effect that a reference to a specified previously filed application for a patent is being submitted instead of all or part of the specification contained in or a drawing that is required to be contained in the application. The prescribed period shall not end later than six months after the earliest date on which the Commissioner receives any document or information under subsection 28(1).

• Marginal note:Specification or drawing deemed in application

  (2) If the applicant submits the statement within the prescribed period and meets the prescribed requirements, the specification or drawing in the previously filed application is deemed to have been contained in the application on the date on which the Commissioner receives the statement.

Marginal note:Maintenance fees

• 27.1 (1) To maintain an application for a patent 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 applicant stating that the application will be deemed to be abandoned 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:Patent not invalid

  (4) A patent shall not be declared invalid by reason only that the application on the basis of which the patent was granted was not maintained in effect.

Marginal note:Filing date

• 28 (1) Subject to subsections 28.01(2) and 36(4), the filing date of an application for a patent in Canada is the date on which the Commissioner receives the prescribed documents and information or, if they are received on different dates, the latest of those dates.

• Marginal note:Outstanding documents and information

  (2) The Commissioner shall notify an applicant whose application does not contain all of the documents and information referred to in subsection (1) of the documents and information that are outstanding and require that the applicant submit them within two months after the date of the notice.

• Marginal note:Application deemed never filed

  (3) If the Commissioner does not receive the outstanding documents and information within that two-month period, the application is deemed never to have been filed. However, any fees paid in respect of the application shall not be refunded to the applicant.

Marginal note:Addition to specification or addition of drawing to application

• 28.01 (1) Subject to the regulations, an applicant may, within the prescribed period, add to the specification that is contained in their application or add a drawing to their application for a patent by submitting the addition to the Commissioner along with a statement by the applicant indicating that the addition is being made under this section. The prescribed period shall not end later than six months after the earliest date on which the Commissioner receives any document or information under subsection 28(1).

• Marginal note:Filing date

  (2) If an applicant submits an addition to the Commissioner under subsection (1) and the addition is not withdrawn within the prescribed period, the filing date of the application is the later of the date on which the Commissioner receives the addition and the filing date referred to in subsection 28(1), unless

  • (a) the applicant has, on the earliest date on which the Commissioner receives any document or information under subsection 28(1), made a request for priority in respect of the application under section 28.4;

  • (b) the addition is completely contained in a previously regularly filed application on which the request for priority is based;

  • (c) the applicant requests, in accordance with the regulations, that the filing date be the filing date referred to in subsection 28(1); and

  • (d) the applicant complies with any prescribed requirements.

• Marginal note:Addition deemed in application

  (3) In the circumstances set out in paragraphs (2)(a) to (d), the addition is deemed to have been contained in the application on its filing date for the purposes of subsections 38.2(2) and (3).

Marginal note:Claim date

• 28.1 (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.

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

• 28.2 (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.