Bill C-43: Changes to the Canadian Patent Act

Amendments to the Canadian Patent Act contained in Bill C-43, received Royal Assent on December 16, 2014.

The amendments seek to fulfill Canada's undertakings to adhere to the Patent Law Treaty which aims to simplify and harmonize administrative practices among national intellectual property offices with respect to the patent application process.

The most significant amendments to the Patent Act, which we wrote about here, include provisions relating to:

• Filing formalities;
• Additions and incorporation by reference;
• Notification of unpaid fees;
• Reinstatement process;
• Restoration requirements;
• Intervening rights; and
• Transfers.

Of note, the amendments to the Patent Act introduce a notification regime whereby an applicant or patentee will be notified by the Patent Office if certain fees remain unpaid. A significant aspect of the amendments also concern the procedure which must be followed when a deadline is missed during the prosecution of a patent application or during the life of a patent. In particular, the requirement to state reasons for the failure to take action and the determination by the Commissioner of Patents that the failure occurred in spite of the due care required by the circumstances having been taken. Under the current amendments to the Patent Act, a filing date will be awarded even if the application fee is omitted, so long as all other filing requirements are met.

The date for the coming into force of the amendments to both the Patent Act and the Patent Rules will be established by way of Order in Council. The amendments to the Patent Rules are being developed in accordance with the regulatory amendment process and will be the subject of formal consultations.

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