Patent Act (R.S.C., 1985, c. P-4)

Marginal note:Patent not invalid

• 73.1 (1) A patent shall not be declared invalid by reason only that the application on the basis of which the patent was granted was deemed to be abandoned and was not reinstated.

• Marginal note:Exception

  (2) Subsection (1) does not apply if the Federal Court makes an order under subsection 73(3.1) in respect of the application on the basis of which the patent was granted.

Offences and Punishment

74 [Repealed, R.S., 1985, c. 33 (3rd Supp.), s. 26]

Marginal note:Offences

• 75 (1) Every person is guilty of an indictable offence and is liable to a fine of not more than $200 or to imprisonment for a term of not more than three months, or to both, who

  • (a) without the consent of the patentee, marks in any way on anything made or sold by the person, and for the sole making or selling of which they are not the patentee, the name or any imitation of the name of any patentee for the sole making or selling of that thing;

  • (b) without the consent of the patentee, marks in any way on anything not purchased from the patentee, the words “Patent”, “Letters Patent”, “Queen’s (or King’s) Patent”, “Patented” or any word or words with a similar meaning, with the intent of counterfeiting or imitating the stamp, mark or device of the patentee, or of deceiving the public and inducing them to believe that the thing in question was made or sold by or with the patentee’s consent; or

  • (c) with intent to deceive the public, offers for sale as patented in Canada any article that is neither patented in Canada nor protected by a certificate of supplementary protection in Canada.

• Marginal note:Certificate of supplementary protection

  (2) Every person is guilty of an indictable offence and is liable to a fine of not more than $200 or to imprisonment for a term of not more than three months, or to both, who

  • (a) during the term of a certificate of supplementary protection, without the consent of the certificate’s holder, marks in any way on anything made or sold by the person, and for the sole making or selling of which they are not the holder of a certificate of supplementary protection, the name or any imitation of the name of any holder of a certificate of supplementary protection for the sole making or selling of that thing;

  • (b) after a certificate of supplementary protection has been issued and before the end of its term, without the consent of the certificate’s holder, marks in any way on anything not purchased from that holder the words “Certificate of Supplementary Protection”, “Protected by a Certificate of Supplementary Protection” or any words with a similar meaning, with the intent of counterfeiting or imitating that holder’s stamp, mark or device, or of deceiving the public and inducing them to believe that the thing in question was made or sold by or with that holder’s consent; or

  • (c) with the intent to deceive the public, offers for sale as protected by a certificate of supplementary protection in Canada any article that

    • (i) is neither patented in Canada nor protected by a certificate of supplementary protection in Canada, or

    • (ii) is patented in Canada but for which no certificate of supplementary protection has been issued.

Marginal note:False representations, false entries, etc.

76 Every person who, in relation to the purposes of this Act and knowing it to be false,

• (a) makes any false representation,

• (b) makes or causes to be made any false entry in any register or book,

• (b.1) submits or causes to be submitted, in an electronic form, any false document, false information or document containing false information,

• (c) makes or causes to be made any false document or alters the form of a copy of any document, or

• (d) produces or tenders any document containing false information,

is guilty of an indictable offence and liable on conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months or to both.

Marginal note:Offence respecting patented medicines

• 76.1 (1) Every person who contravenes or fails to comply with section 80, 81, 82 or 88 or any order made thereunder is guilty of an offence punishable on summary conviction and liable

  • (a) in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both; and

  • (b) in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.

• Marginal note:Idem

  (2) Every person who contravenes or fails to comply with section 84 or any order made under section 83 is guilty of an offence punishable on summary conviction and liable

  • (a) in the case of an individual, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding one year or to both; and

  • (b) in the case of a corporation, to a fine not exceeding one hundred thousand dollars.

• Marginal note:Limitation period

  (3) Proceedings for an offence under subsection (1) or (2) may be commenced within, but not later than, two years after the time when the subject-matter of the proceedings arose.

• Marginal note:Continuing offence

  (4) Where an offence under subsection (1) or (2) is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Written Demands

Marginal note:Requirements

• 76.2 (1) Any written demand received by a person in Canada, that relates to an invention that is patented in Canada or elsewhere or that is protected by a certificate of supplementary protection in Canada or by analogous rights granted elsewhere, must comply with the prescribed requirements.

• Marginal note:Federal Court

  (2) Any person who receives a written demand that does not comply with the prescribed requirements, and any person who is aggrieved as a result of the receipt by another person of such a written demand, may bring a proceeding in the Federal Court.

• Marginal note:Relief

  (3) If the Federal Court is satisfied that the written demand does not comply with the prescribed requirements, it may grant any relief that it considers appropriate, including by way of recovery of damages, punitive damages, an injunction, a declaration or an award of costs.

• Marginal note:Liability — special case

  (4) If a corporation sends a written demand that does not comply with the prescribed requirements, is notified of those requirements and of the demand’s defects in respect of those requirements and does not, within a reasonable time after receiving the notice of those defects, remedy them, the corporation’s officers, directors, agents or mandataries are jointly and severally, or solidarily, liable with the corporation if they directed, authorized, assented to, acquiesced in or participated in the sending of the demand.

• Marginal note:Due diligence

  (5) A person is not to be found liable under subsection (4) if they establish that they exercised due diligence to ensure that the written demand complies with the prescribed requirements.

Marginal note:Regulations

76.3 The Governor in Council may make regulations for the purposes of section 76.2, including regulations

• (a) respecting what constitutes a written demand or an aggrievement;

• (b) respecting the requirements with which a written demand must comply;

• (c) respecting factors that the Federal Court may consider, must consider or is not permitted to consider in making an order under subsection 76.2(3); and

• (d) respecting the circumstances in which a defendant is not to be found liable in a proceeding brought under subsection 76.2(2).

Miscellaneous Matters

77 [Repealed, 1993, c. 15, s. 54]

Marginal note:Time period extended

• 78 (1) If a time period fixed under this Act, in respect of any business before the Patent Office, for doing anything ends on a prescribed day or a day that is designated by the Commissioner, that time period is extended to the next day that is not a prescribed day or a designated day.

• Marginal note:Power to designate day

  (2) The Commissioner may, on account of unforeseen circumstances and if the Commissioner is satisfied that it is in the public interest to do so, designate any day for the purposes of subsection (1). If a day is designated, the Commissioner shall inform the public of that fact on the website of the Canadian Intellectual Property Office.

Transitional Provisions

Marginal note:Definition of coming-into-force date

• 78.1 (1) In sections 78.2, 78.21 and 78.5 to 78.56, coming-into-force date means the day on which section 121 of the Economic Action Plan 2014 Act, No. 2 comes into force.

• Marginal note:Definition of filing date

  (2) In sections 78.21, 78.22, 78.4, 78.5, 78.53 and 78.54, filing date means the date on which an application for a patent in Canada is filed, as determined in accordance with section 78.2.

Marginal note:Filing date

78.2 The filing date of an application for a patent is

• (a) with respect to an original application,

  • (i) if all of the following elements were received by the Commissioner before October 1, 1989, the date on which they were received or, if they were received on different dates, the latest of those different dates:

    • (A) a statement that the granting of a patent is sought, executed by the applicant or by a patent agent on the applicant’s behalf,

    • (B) a specification, including claims,

    • (C) any drawing referred to in the specification,

    • (D) an abstract of the part of the specification other than the claims,

    • (E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received,

  • (ii) if subparagraph (i) does not apply, one or more of the following elements were received by the Commissioner on or after October 1, 1989 and all of the following elements were received by the Commissioner before October 1, 1996, the date on which they were received or, if they were received on different dates, the latest of those different dates:

    • (A) a petition executed by the applicant or by a patent agent on the applicant’s behalf,

    • (B) a specification, including claims,

    • (C) any drawing referred to in the specification,

    • (D) an abstract of the part of the specification other than the claims,

    • (E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received,

  • (iii) if subparagraphs (i) and (ii) do not apply, one or more of the following elements were received by the Commissioner on or after October 1, 1996 and all of the following elements were received by the Commissioner before June 2, 2007, the date on which they were received or, if they were received on different dates, the latest of those different dates:

    • (A) an indication, in English or French, that the granting of a Canadian patent is sought,

    • (B) the applicant’s name,

    • (C) the address of the applicant or of their patent agent,

    • (D) a document, in English or French, that on its face appears to describe an invention,

    • (E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received, and

  • (iv) if subparagraphs (i) to (iii) do not apply, one or more of the following elements were received by the Commissioner on or after June 2, 2007 and all of the following elements were received by the Commissioner before the coming-into-force date, the date on which they were received or, if they were received on different dates, the latest of those different dates:

    • (A) an indication, in English or French, that the granting of a Canadian patent is sought,

    • (B) the applicant’s name,

    • (C) the address of the applicant or of their patent agent,

    • (D) a document, in English or French, that on its face appears to describe an invention,

    • (E) either a small entity declaration, in accordance with section 3.01 of the Patent Rules as it read on the day on which the declaration was received, and the small entity fee set out in item 1 of Schedule II to those Rules as that item read on the day on which that fee was received or the standard fee set out in item 1 of that Schedule, as that item read on the day on which that standard fee was received; or

• (b) with respect to a divisional application, the filing date of the original application from which the divisional application results, determined in accordance with this section.

Marginal note:Applications — no filing date

78.21 An application for a patent that is filed before the coming-into-force date and that does not have a filing date on the coming-into-force date shall be deemed never to have been filed.

Marginal note:Applications — filing date before October 1, 1989

78.22 An application for a patent whose filing date is before October 1, 1989 shall be dealt with and disposed of in accordance with

• (a) the provisions of this Act as they read immediately before October 1, 1989, other than the definition legal representatives in section 2, subsections 4(2), 5(2) and 7(1), sections 8, 15 and 29, paragraph 31(2)(a) and sections 49 to 51 and 78; and

• (b) the definition legal representatives in section 2, subsections 4(2), 5(2) and 7(1), section 8.1, paragraph 31(2)(a) and sections 38.1, 49, 78 and 78.2.