Marginal note:Notice — application found allowable by examiner
86 (1) If an examiner has reasonable grounds to believe that an application for a patent complies with the Act and these Rules, the Commissioner must by notice inform the applicant that the application has been found to be allowable and require the payment of the final fee set out in item 14 of Schedule 2 not later than four months after the date of the notice.
Marginal note:Conditional notice of allowance
(1.1) If an examiner has reasonable grounds to believe that, but for certain minor defects, an application for a patent would comply with the Act and these Rules, the Commissioner may by notice inform the applicant that the application has been found to be allowable subject to certain amendments being made and require the applicant to, not later than four months after the day on which the notice is sent, make those amendments, or submit arguments as to why the application does comply, and pay the final fee set out in item 14 of Schedule 2.
Marginal note:Notice of defects
(2) If an examiner has reasonable grounds to believe that an application for a patent does not comply with the Act or these Rules, the examiner must by notice inform the applicant of the application’s defects and requisition the applicant to amend the application in order to comply with the Act and these Rules, or to submit arguments as to why the application does comply, not later than four months after the date of the notice.
Marginal note:Rejection for defect
(3) If an applicant replies in good faith to the requisition made under subsection (2), on or before the date set out in subsection (4), but the examiner, after receiving the reply, has reasonable grounds to believe that the application for a patent still does not comply with the Act or these Rules in respect of any of the defects referred to in the requisition and that the applicant will not amend the application to comply with the Act and these Rules, the examiner may reject the application.
Marginal note:Date
(4) For the purpose of subsection (3), the date is the last day of the period referred to in subsection (2) or, if the application for a patent is deemed to be abandoned under paragraph 73(1)(a) of the Act for failure to reply in good faith to a requisition made under subsection (2), the day on which the conditions for reinstatement set out in subsection 73(3) of the Act are met in respect of that abandonment.
Marginal note:Final action
(5) If an examiner rejects an application for a patent, the examiner must send a notice bearing the notation “Final Action” or “Décision finale”, indicating the outstanding defects and requisitioning the applicant to amend the application in order to comply with the Act and these Rules, or to submit arguments as to why the application does comply, not later than four months after the date of the notice.
Marginal note:Notice — application found allowable after final action
(6) If an applicant, on or before the date set out in subsection (8), replies in good faith to a requisition made under subsection (5) and the examiner has reasonable grounds to believe that the application for a patent complies with the Act and these Rules, the Commissioner must by notice inform the applicant that the rejection is withdrawn and the application has been found to be allowable and require the payment of the final fee set out in item 14 of Schedule 2 not later than four months after the date of the notice.
Marginal note:Rejection not withdrawn after final action
(7) If an applicant replies in good faith to a requisition made under subsection (5) on or before the date set out in subsection (8) but, after that date, the examiner still has reasonable grounds to believe that the application for a patent does not comply with the Act or these Rules,
(a) the Commissioner must by notice inform the applicant that the rejection has not been withdrawn;
(b) any amendments made to that application during the period beginning on the date of the final action notice and ending on the date set out in subsection (8) are considered never to have been made; and
(c) the application must be reviewed by the Commissioner.
Marginal note:Date
(8) For the purposes of subsections (6) and (7), the date is four months after the date of the notice referred to in subsection (5) or, if the application for a patent is deemed to be abandoned under paragraph 73(1)(a) of the Act for failure to reply in good faith to a requisition made under subsection (5), the day on which the conditions for reinstatement set out in subsection 73(3) of the Act are met in respect of that abandonment.
Marginal note:Additional defects
(9) If, during the review of a rejected application for a patent, the Commissioner has reasonable grounds to believe that the application does not comply with the Act or these Rules in respect of defects other than those indicated in the final action notice, the Commissioner must by notice inform the applicant of those defects and invite the applicant to submit arguments, not later than one month after the date of the notice, as to why the application does comply.
Marginal note:Notice — rejection withdrawn
(10) If, after review of a rejected application for a patent, the Commissioner has reasonable grounds to believe that the application complies with the Act and these Rules, the Commissioner must by notice inform the applicant that the rejection is withdrawn and that the application has been found to be allowable and require the payment of the final fee set out in item 14 of Schedule 2 not later than four months after the date of the notice.
Marginal note:Notice requiring certain amendments
(11) If, after review of a rejected application for a patent, the Commissioner has reasonable grounds to believe that the application does not comply with the Act or these Rules and certain amendments are necessary in order to make the application allowable, the Commissioner must by notice inform the applicant that those amendments must be made not later than three months after the date of the notice.
Marginal note:Notice — application found allowable after amendments
(12) If the applicant complies with the notice sent under subsection (11), the Commissioner must by notice inform the applicant that the rejection is withdrawn and that the application has been found to be allowable and require the payment of the final fee set out in item 14 of Schedule 2 not later than four months after the date of the notice.
Marginal note:Right to hearing
(13) Before refusing an application for a patent under section 40 of the Act, the Commissioner must give the applicant an opportunity to be heard.
Marginal note:Withdrawal of notice of allowance
(14) If, after a notice of allowance is sent but before a patent is issued, the examiner has reasonable grounds to believe that the application for a patent does not comply with the Act or these Rules, the Commissioner must, subject to subsection (14.2),
(a) by notice, inform the applicant that the application does not comply with the Act or these Rules and that the notice of allowance is withdrawn; and
(b) if the final fee has been paid, refund it.
Marginal note:Withdrawal of conditional notice of allowance — other defects
(14.1) If, after a conditional notice of allowance is sent but before a patent is issued, the examiner has reasonable grounds to believe that the application for a patent does not comply with the Act or these Rules in respect of defects other than those referred to in that notice, the Commissioner must, subject to subsection (14.2),
(a) by notice, inform the applicant that the application does not comply with the Act or these Rules and that the conditional notice of allowance is withdrawn; and
(b) if the final fee has been paid, refund it.
Marginal note:Exception to subsections (14) and (14.1)
(14.2) The Commissioner is not required to take the actions referred to in subsection (14) or (14.1) if the examiner has reasonable grounds to believe that the defects in the application for a patent would not affect the readability, clarity or validity of the patent, if it were granted.
Marginal note:Withdrawal of conditional notice of allowance after reply
(15) If an applicant replies in good faith to a conditional notice of allowance on or before the date set out in subsection (16) but the examiner, after receiving the reply, has reasonable grounds to believe that the application for a patent still does not comply with the Act or these Rules in respect of any of the defects referred to in that notice, the Commissioner must
(a) by notice, inform the applicant that the application does not comply with the Act or these Rules and that the conditional notice of allowance is withdrawn; and
(b) if the final fee has been paid, refund it.
Marginal note:Date
(16) For the purposes of subsection (15), the date is the last day of the period referred to in subsection (1.1) or, if the application for a patent is deemed to be abandoned under subsection 73(2) of the Act in the circumstances referred to in paragraph 132(1)(g), the day on which the conditions for reinstatement set out in subsection 73(3) of the Act are met in respect of that abandonment.
Marginal note:Suspension of examination — abandoned application
(17) The examination of an application for a patent under subsection 35(1) of the Act is suspended for any period during which the application is deemed to be abandoned under section 73 of the Act.
Marginal note:Non-application of subsection 3(1)
(18) Subsection 3(1) does not apply in respect of the times referred to in subsection (1), (1.1), (6), (10) or (12).
- SOR/2022-120, s. 16
- SOR/2022-120, s. 53
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