Patent Rules

Marginal note:Continued examination

• 85.1 (1) If three notices have been sent to the applicant under either or both of subsections 86(2) and (5) since the examination of an application for a patent under subsection 35(1) of the Act began, and a notice of allowance or conditional notice of allowance has not been set aside under subsection (4) before the third notice is sent, the examiner must, by notice, inform the applicant of the need to make a request for continued examination and pay the prescribed fee.

• Marginal note:Continued examination — subsequent request

  (2) If two notices have been sent to the applicant under either or both of subsections 86(2) and (5) since the most recent request for continued examination was made, the examiner must, by notice, inform the applicant of the need to make a request for continued examination and pay the prescribed fee.

• Marginal note:Time limit for making request

  (3) The applicant must make a request for continued examination and pay the prescribed fee not later than four months after the day on which a notice is sent under subsection (1) or (2) to inform the applicant of the need to make the request and pay the fee.

• Marginal note:Notice set aside

  (4) A notice of allowance or conditional notice of allowance that is sent to the applicant under subsection 86(1), (1.1), (6) or (10) is set aside if the applicant makes a request for continued examination and pays the prescribed fee not later than the earlier of

  • (a) four months after the day on which the notice of allowance or conditional notice of allowance is sent; and

  • (b) the day before the day on which the final fee set out in item 14 of Schedule 2 is paid or, if the final fee is refunded, the day before the day on which the final fee is paid again.

• Marginal note:Fee for continued examination

  (5) The prescribed fee for the continued examination is

  • (a) the small entity fee set out in item 13 of Schedule 2, if the small entity status condition set out in subsection 44(2) is met and a small entity declaration is filed in respect of the application in accordance with subsection 44(3) before the end of the applicable time, referred to in subsection (3) or (4), for the payment of the fee; or

  • (b) in any other case, the standard fee set out in that item.

• Marginal note:Interpretation — number of notices

  (6) For greater certainty, a notice sent under subsection 86(2) or (5) that is withdrawn by an examiner or by the Commissioner does not count as a notice for the purposes of subsection (1) or (2).

• Marginal note:Non-application of subsection 3(1)

  (7) Subsection 3(1) does not apply in respect of the times referred to in subsection (3) or (4).