Patent Act

This Act may be cited as the Patent Act.

In this Act, except as otherwise provided,

applicant includes an inventor and the legal representatives of an applicant or inventor; (demandeur)

certificate of supplementary protection means a certificate issued by the Minister of Health under section 113; (certificat de protection supplémentaire)

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 means the Commissioner of Patents; (commissaire)

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

filing date means the date on which an application for a patent in Canada is filed, as determined in accordance with section 28 or subsection 28.01(2) or 36(4); (date de dépôt)

holder means, with respect to a certificate of supplementary protection, the person for the time being that is entitled to the benefit of the certificate; (titulaire)

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; (invention)

legal representatives includes heirs, executors, administrators of the estate, liquidators of the succession, guardians, curators, tutors, transferees and all other persons claiming through applicants for patents and patentees of inventions or through holders of certificates of supplementary protection; (représentants légaux)

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; (ministre)

patent means letters patent for an invention; (brevet)

patent agent has the same meaning as in section 2 of the College of Patent Agents and Trademark Agents Act; (agent de brevets)

patentee means the person for the time being entitled to the benefit of a patent; (breveté ou titulaire d’un brevet)

predecessor in title includes any person through whom an applicant for a patent in Canada claims the right to the patent; (prédécesseur en droit)

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; (réglementaire)

prescribed fee[Repealed, R.S., 1985, c. 33 (3rd Supp.), s. 1]

priority date[Repealed, 1993, c. 15, s. 26]

regulation includes a rule or form; (règlement)

regulation and rule[Repealed, 2017, c. 6, s. 32]

request for priority means a request under section 28.4; (demande de priorité)

rule includes a regulation or form. (règle)

work on a commercial scale[Repealed, 1993, c. 44, s. 189]

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

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.

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.

The Commissioner shall receive all applications, fees, and documents relating to patents, shall perform and do all acts and things requisite for the granting and issuing of patents, shall have the charge and custody of the books, records 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.

The Commissioner holds office during pleasure and shall be paid such annual salary as may be determined by the Governor in Council.

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.

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.

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.

If the Commissioner is absent or unable to act or the office of Commissioner is vacant, the Assistant Commissioner or, if at the same time the Assistant Commissioner is absent or unable to act or the office of Assistant Commissioner is vacant, another officer designated by the Minister may exercise the powers and shall perform the duties of the Commissioner.

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.

No officer or employee of the Patent Office shall buy, sell, acquire or traffic in any invention, patent, right to a patent, certificate of supplementary protection or right to such a certificate, or any interest in any of them, and every purchase, sale, acquisition or transfer of any of them, or of any interest in any of them, made by or to such an officer or employee is void or, in Quebec, null.

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.

[Repealed, 2015, c. 36, s. 51]

Subject to the regulations, any document, information or fee that is submitted to the Commissioner or the Patent Office under this Act may be submitted in any electronic form, and by any electronic means, that is specified by the Commissioner.

Subject to the regulations, the Commissioner and the Patent Office may use electronic means to create, collect, receive, store, transfer, distribute, publish, certify or otherwise deal with documents or information or to seal a patent or other document.

In this section, electronic, in reference to a form or means, includes optical, magnetic and other similar forms or means.

[Repealed, 2014, c. 39, s. 117]

If any patent is destroyed or lost, a certified copy may be issued in lieu thereof on payment of the prescribed fee.

Subject to subsections (2) to (6) and section 20, all patents, applications for patents and documents relating to patents or applications for patents that are in the possession of the Patent Office shall be open to public inspection at the Patent Office, under any conditions that may be prescribed.

Except with the approval of the applicant, an application for a patent, or a document relating to the application, shall not be open to public inspection before a confidentiality period of 18 months has expired.

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.

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.

An application shall not be open to public inspection if it is withdrawn in accordance with the regulations on or before the prescribed date.

A prescribed date referred to in subsection (4) or (5) must be no later than the date on which the confidentiality period expires.

[Repealed, 2015, c. 36, s. 52]

The Governor in Council may make rules or regulations

respecting the form and contents of applications for patents;

defining drawing for the purposes of this Act and respecting the circumstances in which certain drawings may be furnished as part of applications for patents;

respecting abstracts in applications for patents, including authorizing the Commissioner to amend or replace abstracts;

respecting the consequences of a failure to comply with a notice given under subsection 27(7);

respecting the processing and examination of applications for patents;

respecting the form of the Register of Patents and of the indexes thereto;

respecting the registration of transmissions, disclaimers, judgments or other documents relating to a patent or an application for a patent;

respecting the recording of transfers of patents or applications for patents;

respecting the form and contents of any certificate issued pursuant to this Act;

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;

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;

respecting the payment of any prescribed fees, including the time when and the manner in which such fees shall be paid, the time at which such fees are deemed to 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;

authorizing the Commissioner to waive, subject to any prescribed terms and conditions, the payment of a fee if the Commissioner is satisfied that the circumstances justify it;

for carrying into effect the terms of any treaty, convention, arrangement or engagement that subsists between Canada and any other country;

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;

for carrying into effect the Patent Law Treaty, done at Geneva on June 1, 2000, including any amendments and revisions made from time to time to which Canada is a party;

[Repealed, 2018, c. 27, s. 250]

[Repealed, 2018, c. 27, s. 259]

[Repealed, 2018, c. 27, s. 259]

respecting the circumstances in which an applicant, patentee or other person may or must be represented in business before the Patent Office by a patent agent whose licence is not suspended or by another person;

respecting the submission, including in electronic form and by electronic means, of documents and information to the Commissioner or the Patent Office, including the time at which they are deemed to be received by the Commissioner or the Patent Office;

respecting the use of electronic means for the purposes of subsection 8.1(2);

respecting the withdrawal of an application for a patent 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 is to be withdrawn;

respecting additions to the specification and additions of drawings for the purposes of subsection 28.01(1);

respecting requests for priority, including

the period within which priority is to be requested,

the information and documents that are to be submitted in support of requests for priority,

the period within which that information and those documents are to be submitted,

the withdrawal of requests for priority, and

the correction of requests for priority or of information or documents submitted in support of them and the effect of corrections on the duration of the confidentiality period referred to in subsection 10(3);

respecting the application of subsection 28.4(6);

respecting divisional applications, including the time period within which divisional applications may be filed and the persons who may file divisional applications;

defining one invention for the purposes of section 36;

respecting the deposit of biological material for the purposes of section 38.1;

respecting the manner in which amendments may be made to specifications or drawings furnished as part of an application for a patent;

respecting amendments to the specification or drawings for the purposes of subsection 38.2(1);

respecting the replacement of all or part of the text matter of a specification or drawing contained in an application for a patent that is in a language other than English or French with a translation into English or French, for the purposes of paragraph 38.2(3)(b);

respecting the conditions set out in subsections 46(5) and 46.2(5), including the circumstances in which subparagraph 46(5)(a)(ii), paragraph 46(5)(b), subparagraph 46.2(5)(a)(ii) and paragraph 46.2(5)(b) do not apply;

respecting the number of days to be subtracted in determining the duration of an additional term under subsection 46.1(4), including authorizing the Commissioner to make determinations with respect to that number;

respecting applications under section 46.1 for an additional term, including their form, contents and processing;

respecting notices to the public in relation to additional terms granted under section 46.1;

respecting reconsiderations under section 46.3, including applications for a reconsideration and their form, contents and processing;

establishing a period for the purposes of subsection 55.11(2);

establishing a period for the purposes of subsections 55.11(3), (7) and (9);

respecting the reinstatement of applications for patents under subsection 73(3), including the circumstances in which subparagraph 73(3)(a)(ii) and paragraph 73(3)(b) do not apply;

respecting communications between the Commissioner and any other person;

authorizing the Commissioner to, during or after the end of the time period fixed under this Act in respect of any business before the Patent Office, for doing anything, extend that time period, subject to any prescribed terms and conditions, if the Commissioner considers that the circumstances justify the extension;

respecting the correction of obvious errors in documents submitted to the Commissioner or the Patent Office or in patents or other documents granted or issued under this Act, other than under sections 106 to 134, including

the determination of what constitutes an obvious error, and

the effect of the correction;

prescribing any other matter that by any provision of this Act is to be prescribed; and

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.

Any rule or regulation made by the Governor in Council has the same force and effect as if it had been enacted herein.

The Commissioner shall cause a seal to be made for the purposes of this Act and may cause to be sealed therewith every patent and other instrument and copy thereof issuing from the Patent Office.

Every court, judge and person shall take notice of the seal of the Patent Office, shall admit the impressions thereof in evidence in like manner as the impressions of the Great Seal are admitted in evidence and shall take notice of and admit in evidence, without further proof and without production of the originals, all copies or extracts certified under the seal of the Patent Office to be copies of or extracts from documents deposited in that Office.

In any action or proceeding respecting a patent authorized to be had or taken in Canada under this Act, a copy of any patent granted in any other country, or any official document connected therewith, purporting to be certified under the hand of the proper officer of the government of the country in which the patent has been obtained, may be produced before the court or a judge thereof, and the copy of the patent or document purporting to be so certified may be admitted in evidence without production of the original and without proof of the signature or official character of the person appearing to have signed it.

[Repealed, 2018, c. 27, s. 251]

[Repealed, 2018, c. 27, s. 251]

A communication that meets the following conditions is privileged in the same way as a communication that is subject to solicitor-client privilege or, in civil law, to professional secrecy of advocates and notaries and no person shall be required to disclose, or give testimony on, the communication in a civil, criminal or administrative action or proceeding:

it is between a patent agent and their client;

it is intended to be confidential; and

it is made for the purpose of seeking or giving advice with respect to any matter relating to the protection of an invention.

Subsection (1) does not apply if the client expressly or implicitly waives the privilege.

Exceptions to solicitor-client privilege or, in civil law, to professional secrecy of advocates and notaries apply to a communication that meets the conditions set out in paragraphs (1)(a) to (c).

A communication between an individual who is authorized to act as the equivalent of a patent agent under the law of a country other than Canada and that individual’s client that is privileged under the law of that other country and that would be privileged under subsection (1) had it been made between a patent agent and their client is deemed to be a communication that meets the conditions set out in paragraphs (1)(a) to (c).

For the purposes of this section, a patent agent or an individual who is authorized to act as the equivalent of a patent agent under the law of a country other than Canada includes an individual acting on their behalf and a client includes an individual acting on the client’s behalf.

This section applies to communications that are made before the day on which this section comes into force if they are still confidential on that day and to communications that are made after that day. However, this section does not apply in respect of an action or proceeding commenced before that day.

In all cases where an appeal is provided from the decision of the Commissioner to the Federal Court under this Act, the appeal shall be had and taken pursuant to the Federal Courts Act and the rules and practice of that Court.

Whenever an appeal to the Federal Court from the decision of the Commissioner is permitted under this Act, notice of the decision shall be mailed by the Commissioner by registered letter addressed to the interested parties or their respective agents.

The appeal shall be taken within three months after the date of mailing of the notice, unless otherwise provided by or under this Act.

Subject to section 19.1, the Commissioner may, on application by the Government of Canada or the government of a province, authorize the use of a patented invention by that government.

Subject to section 19.1, the use of the patented invention may be authorized for such purpose, for such period and on such other terms as the Commissioner considers expedient but the Commissioner shall settle those terms in accordance with the following principles:

the scope and duration of the use shall be limited to the purpose for which the use is authorized;

the use authorized shall be non-exclusive; and

any use shall be authorized predominantly to supply the domestic market.

The Commissioner shall notify the patentee of any use of the patented invention that is authorized under this section.

Where the use of the patented invention is authorized, the authorized user shall pay to the patentee such amount as the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization.

The Commissioner may, on application by the patentee and after giving all concerned parties an opportunity to be heard, terminate the authorization if the Commissioner is satisfied that the circumstances that led to the granting of the authorization have ceased to exist and are unlikely to recur, subject to such conditions as the Commissioner deems appropriate to protect the legitimate interests of the authorized user.

An authorization granted under this section is not transferable.

The Commissioner may not authorize the use of a patented invention under section 19 unless the applicant establishes that

it has made efforts to obtain from the patentee on reasonable commercial terms and conditions the authority to use the patented invention; and

its efforts have not been successful within a reasonable period.

Subsection (1) does not apply in cases of national emergency or extreme urgency or where the use for which the authorization is sought is a public non-commercial use.

The Commissioner may not, under section 19, authorize any use that is a prescribed use unless the proposed user complies with the prescribed conditions.

The Commissioner may not, under section 19, authorize any use of semi-conductor technology other than a public non-commercial use.

Any decision made by the Commissioner under section 19 or 19.1 is subject to appeal to the Federal Court.

The Governor in Council may make regulations for the purpose of implementing, in relation to patents, Article 1720 of the Agreement.

In subsection (1), Agreement has the same meaning as in subsection 2(1) of the North American Free Trade Agreement Implementation Act.

The Commissioner shall, on the application of the Minister of Health, authorize the Government of Canada and any person specified in the application to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application.

The application must

set out the name of the patentee and the number, as recorded in the Patent Office, of the patent issued in respect of the patented invention;

include a confirmation that the Chief Public Health Officer, appointed under subsection 6(1) of the Public Health Agency of Canada Act, believes that there is a public health emergency that is a matter of national concern;

include a description of the public health emergency; and

specify a person, if any, that is to be authorized to make, construct, use and sell the patented invention for the purposes of responding to the public health emergency.

The authorization ceases to have effect the earlier of

the day on which the Minister of Health notifies the Commissioner that the authorization is no longer necessary to respond to the public health emergency set out in the application, and

one year after the day on which it is granted.

The Commissioner shall notify the patentee of any authorization that is granted under this section and provide them with the information referred to in subsection (2).

The Government of Canada and any person authorized under subsection (1) shall pay the patentee any amount that the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization and the extent to which they make, construct, use and sell the patented invention.

An authorization granted under this section is not transferable.

For greater certainty, the use or sale, in relation to a public health emergency, of a patented invention that is made or constructed in accordance with an authorization granted under this section is not an infringement of the patent.

On the application of the patentee, the Federal Court may make an order requiring the Government of Canada or any person authorized under subsection (1) to cease making, constructing, using or selling the patented invention in a manner that is inconsistent with the authorization granted under this section.

The Commissioner shall not make an authorization under subsection (1) after September 30, 2020.

Any officer, servant or employee of the Crown or of a corporation that is an agent or servant of the Crown, who, acting within the scope of his duties and employment, invents any invention in instruments or munitions of war shall, if so required by the Minister of National Defence, assign to that Minister on behalf of Her Majesty all the benefits of the invention and of any patent obtained or to be obtained for the invention.

Any person other than a person described in subsection (1) who invents an invention described in that subsection may assign to the Minister of National Defence on behalf of Her Majesty all the benefits of the invention and of any patent obtained or to be obtained for the invention.

An inventor described in subsection (2) is entitled to compensation for an assignment to the Minister of National Defence under this Act and in the event that the consideration to be paid for the assignment is not agreed on, it is the duty of the Commissioner to determine the amount of the consideration, which decision is subject to appeal to the Federal Court.

Proceedings before the Federal Court under subsection (3) shall be held in camera on request made to the court by any party to the proceedings.

An assignment to the Minister of National Defence under this Act effectually vests the benefits of the invention and patent in the Minister of National Defence on behalf of Her Majesty, and all covenants and agreements therein contained for keeping the invention secret and otherwise are valid and effectual, notwithstanding any want of valuable consideration, and may be enforced accordingly by the Minister of National Defence.

Any person who has made an assignment to the Minister of National Defence under this section, in respect of any covenants and agreements contained in such assignment for keeping the invention secret and otherwise in respect of all matters relating to that invention, and any other person who has knowledge of such assignment and of such covenants and agreements, shall be, for the purposes of the Foreign Interference and Security of Information Act, deemed to be persons having in their possession or control information respecting those matters that has been entrusted to them in confidence by any person holding office under Her Majesty, and the communication of any of that information by the first mentioned persons to any person other than one to whom they are authorized to communicate with, by or on behalf of the Minister of National Defence, is an offence under section 4 of the Foreign Int…

Where any agreement for an assignment to the Minister of National Defence under this Act has been made, the Minister of National Defence may submit an application for patent for the invention to the Commissioner, with the request that it be examined for patentability, and if the application is found allowable may, before the grant of any patent thereon, certify to the Commissioner that, in the public interest, the particulars of the invention and of the manner in which it is to be worked are to be kept secret.

If the Minister of National Defence so certifies, the application and specification, with the drawing, if any, and any amendment of the application, and any copies of those documents and the drawing and the patent granted thereon shall be placed in a packet sealed by the Commissioner under authority of the Minister of National Defence.

The packet described in subsection (8) shall, until the expiry of the term — or, if applicable, of the additional term — during which a patent for the invention may be in force, be kept sealed by the Commissioner, and shall not be opened except under the authority of an order of the Minister of National Defence.

The packet described in subsection (8) shall be delivered at any time during the continuance of the patent to any person authorized by the Minister of National Defence to receive it, and shall, if returned to the Commissioner, be kept sealed by him.

On the expiry of the term — or, if applicable, of the additional term — of the patent, the packet described in subsection (8) shall be delivered to the Minister of National Defence.

No proceeding by petition or otherwise lies to have declared invalid or void a patent granted for an invention in relation to which a certificate has been given by the Minister of National Defence under subsection (7), except by permission of the Minister.

No copy of any specification or other document or drawing in respect of an invention and patent, by this section required to be placed in a sealed packet, shall in any manner whatever be published or open to the inspection of the public, but, except as otherwise provided in this section, this Act shall apply in respect of the invention and patent.

The Minister of National Defence may at any time waive the benefit of this section with respect to any particular invention, and the specification, documents and drawing relating thereto shall thereafter be kept and dealt with in the regular way.

No claim shall be allowed in respect of any infringement of a patent that occurred in good faith during the time that the patent was kept secret under this section, and any person who, before the publication of the patent, had in good faith done any act that, but for this subsection would have given rise to a claim, is entitled, after the publication, to obtain a licence to manufacture, use and sell the patented invention on such terms as may, in the absence of agreement between the parties, be settled by the Commissioner or by the Federal Court on appeal from the Commissioner.

The communication of any invention for any improvement in munitions of war to the Minister of National Defence, or to any person or persons authorized by the Minister of National Defence to investigate the invention or the merits thereof, shall not, nor shall anything done for the purposes of the investigation, be deemed use or publication of the invention so as to prejudice the grant or validity of any patent for the invention.

The Governor in Council, if satisfied that an invention relating to any instrument or munition of war, described in any specified application for patent not assigned to the Minister of National Defence, is vital to the defence of Canada and that the publication of a patent therefor should be prevented in order to preserve the safety of the State, may order that the invention and application and all the documents relating thereto shall be treated for all purposes of this section as if the invention had been assigned or agreed to be assigned to the Minister of National Defence.

The Governor in Council may make rules for the purpose of ensuring secrecy with respect to applications and patents to which this section applies and generally to give effect to the purpose and intent thereof.

Where by any agreement between the Government of Canada and any other government it is provided that the Government of Canada will apply section 20 to inventions disclosed in any application for a patent assigned or agreed to be assigned by the inventor to that other government, and the Commissioner is notified by any minister of the Crown that the agreement extends to an invention in a specified application, the application and all the documents relating thereto shall be dealt with as provided in section 20, except subsections (3) and (4), as if the invention had been assigned or agreed to be assigned to the Minister of National Defence.

The purpose of sections 21.02 to 21.2 is to give effect to Canada’s and Jean Chrétien’s pledge to Africa by facilitating access to pharmaceutical products to address public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.

The definitions in this section apply in this section and in sections 21.03 to 21.19.

authorization means an authorization granted under subsection 21.04(1), and includes an authorization renewed under subsection 21.12(1). (autorisation)

General Council means the General Council of the WTO established by paragraph 2 of Article IV of the Agreement Establishing the World Trade Organization, signed at Marrakesh on April 15, 1994. (Conseil général)

General Council Decision means the decision of the General Council of August 30, 2003 respecting Article 31 of the TRIPS Agreement, including the interpretation of that decision in the General Council Chairperson’s statement of that date. (décision du Conseil général)

patented product means a product the making, constructing, using or selling of which in Canada would infringe a patent in the absence of the consent of the patentee. (produit breveté)

pharmaceutical product means any patented product listed in Schedule 1 in, if applicable, the dosage form, the strength and the route of administration specified in that Schedule in relation to the product. (produit pharmaceutique)

TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, being Annex 1C of the Agreement Establishing the World Trade Organization, signed at Marrakesh on April 15, 1994. (Accord sur les ADPIC)

TRIPS Council means the council referred to in the TRIPS Agreement. (Conseil des ADPIC)