INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Patent Act

Patent Act -- CHAPTER P-4

File : P-4.TXT
Updated to : December 31, 1998

Note: This consolidation is not an official version of the law. Also,
because this file is text-only, it does not contain formatting or graphics.

Patent Act

CHAPTER P-4

An Act respecting patents of invention

SHORT TITLE

Short title

1. This Act may be cited as the Patent Act.

R.S., c. P-4, s. 1.

INTERPRETATION

Definitions

2. In this Act, except as otherwise provided,

applicant «demandeur»

applicant includes an inventor and the legal representatives of an applicant
or inventor;

claim date Version anglaise seulement

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 «commissaire»

Commissioner means the Commissioner of Patents;

country « pays »

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

filing date « date de dépôt »

filing date means, in relation to an application for a patent in Canada, the
date on which the application is filed, as determined in accordance with section
28;

invention «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;

legal representatives «représentants légaux»

legal representatives includes heirs, executors, administrators, guardians,
curators, tutors, assigns and all other persons claiming through or under
applicants for patents and patentees of inventions;

Minister «ministre»

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;

patent «brevet»

patent means letters patent for an invention;

patentee «breveté» ou «titulaire d'un brevet»

patentee means the person for the time being entitled to the benefit of a
patent;

predecessor in title « prédécesseur en droit »

predecessor in title includes any person through whom an applicant for a
patent in Canada claims the right to the patent;

prescribed «réglementaire»

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;

prescribed fee [Repealed, R.S., 1985, c. 33 (3rd Supp.), s. 1]

priority date [Repealed, 1993, c. 15, s. 26]

regulation and rule «règlement» et «règle»

regulation and rule include rule, regulation and form;

request for priority « demande de priorité »

request for priority means a request under section 28.4.

work on a commercial scale [Repealed, 1993, c. 44, s. 189]

R.S., 1985, c. P-4, s. 2; R.S., 1985, c. 33 (3rd Supp.), s. 1; 1992, c. 1, s.
145(F); 1993, c. 2, s. 2, c. 15, s. 26, c. 44, s. 189; 1994, c. 47, s. 141;
1995, c. 1, s. 62.

HER MAJESTY

Binding on Her Majesty

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

1993, c. 44, s. 190.

PATENT OFFICE AND OFFICERS

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.

R.S., 1985, c. P-4, s. 3; 1992, c. 1, s. 145(F); 1995, c. 1, s. 63.

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.

Duties of Commissioner

(2) The Commissioner shall receive all applications, fees, papers, documents and
models for patents, shall perform and do all acts and things requisite for the
granting and issuing of patents of invention, shall have the charge and custody
of the books, records, papers, models, machines 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.

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.

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.

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.

R.S., c. P-4, s. 4; 1984, c. 40, s. 57.

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.

Absence or inability to act

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

R.S., c. P-4, s. 5.

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.

R.S., c. P-4, s. 6.

Officers of Patent Office not to deal in patents

7. (1) No officer or employee of the Patent Office shall buy, sell, acquire or
traffic in any invention, patent or right to a patent, or any interest therein,
and every purchase, sale, assignment, acquisition or transfer of any invention,
patent or right to a patent, or any interest therein, made by or to any officer
or employee is void.

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.

R.S., c. P-4, s. 7.

Clerical errors

8. Clerical errors in any instrument of record in the Patent Office do not
invalidate the instrument, but they may be corrected under the authority of the
Commissioner.

R.S., 1985, c. P-4, s. 8; 1993, c. 15, s. 27.

Electronic or other submission of documents, information or fees

8.1 (1) Subject to the regulations, any document, information or fee that is
authorized or required to be submitted to the Commissioner under this Act may be
submitted in electronic or other form in any manner specified by the
Commissioner.

Time of receipt

(2) For the purposes of this Act, any document, information or fee submitted in
accordance with subsection (1) is deemed to be received by the Commissioner at
the time provided by the regulations.

1993, c. 15, s. 27.

Storage of documents or information in electronic or other form

8.2 Subject to the regulations, any document or information received by the
Commissioner under this Act in electronic or other form may be entered or
recorded by any information storage device, including any system of mechanical
or electronic data processing, that is capable of reproducing stored documents
or information in intelligible form within a reasonable time.

1993, c. 15, s. 27.

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.

R.S., c. P-4, s. 9.

Inspection by the public

10. (1) Subject to subsections (2) to (6) and section 20, all patents,
applications for patents and documents filed in connection with patents or
applications for patents shall be open to public inspection at the Patent
Office, under such conditions as may be prescribed.

Confidentiality period

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

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.

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.

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.

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.

R.S., 1985, c. P-4, s. 10; R.S., 1985, c. 33 (3rd Supp.), s. 2; 1993, c. 15, s.
28.

Patents issued out of Canada

11. Notwithstanding the exception in section 10, the Commissioner, on the
request of any person who states in writing the name of the inventor, if
available, the title of the invention and the number and date of a patent said
to have been granted in a named country other than Canada, and who pays or
tenders the prescribed fee, shall inform that person whether an application for
a patent of the same invention is or is not pending in Canada.

R.S., c. P-4, s. 11.

RULES AND REGULATIONS

Rules and regulations

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

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

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

(c) respecting the registration of assignments, transmissions, disclaimers,
judgments or other documents relating to any patent;

(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;

(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;

(j) respecting the entry on, the maintenance of and the removal from the
register of patent agents of the names of persons and firms, including the
qualifications that must be met and the conditions that must be fulfilled by a
person or firm before the name of the person or firm is entered thereon and to
maintain the name of the person or firm on the register;

(j.1) respecting the submission of documents, information or fees under section
8.1, including

(i) the documents, information or fees that may be submitted in electronic or
other form under that section,

(ii) the persons or classes of persons by whom they may be submitted, and

(iii) the time at which they are deemed to be received by the Commissioner;

(j.2) respecting the entering or recording of any document or information under
section 8.2;

(j.3) prescribing the manner in which an application for a patent may be
withdrawn 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 must be withdrawn;

(j.4) respecting requests for priority, including

(i) the period within which priority must be requested,

(ii) the manner in which and period within which the Commissioner must be
informed of the matters referred to in subsection 28.4(2),

(iii) the documentation that must be filed in support of requests for priority,
and

(iv) the withdrawal of requests for priority;

(j.5) respecting the time within which requests for examination must be made and
prescribed fees must be paid under subsection 35(1);

(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.8) authorizing the Commissioner to extend, subject to any prescribed terms
and conditions, the time fixed by or under this Act for doing anything where the
Commissioner is satisfied that the circumstances justify the extension;

(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.

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.

R.S., 1985, c. P-4, s. 12; R.S., 1985, c. 33 (3rd Supp.), s. 3; 1993, c. 15, s.
29.

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