Patent Act

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.