Patent Act

Marginal note:Exception — third party rights

• 55.11 (1) This section applies only in respect of the following patents and certificates of supplementary protection that set out the following patents:

  • (a) a patent that was granted on the basis of an application

    • (i) in respect of which the prescribed fee referred to in subsection 27.1(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 27.1(3),

    • (ii) in respect of which a request referred to in subsection 35(2) was not made and the prescribed fee referred to in that subsection was not paid within the prescribed time referred to in that subsection, without taking into account subsection 35(4), or

    • (iii) that was deemed abandoned under paragraph 73(1)(a), (b) or (e), under paragraph 73(1)(f) as it read at any time before the coming into force of this subparagraph or under subsection 73(2);

  • (b) a patent that was granted on the basis of a divisional application that

    • (i) results, under subsection 36(2) or (2.1), from the division of an original application that is an application referred to in this paragraph or paragraph (a), and

    • (ii) was filed after the beginning of the period referred to in subsection (2) or, if it is earlier, the period referred to in subsection (3), that applies to the patent granted on the basis of the original application or that would apply to that patent if it were granted; and

  • (c) a patent in respect of which the prescribed fee referred to in subsection 46(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 46(3).

• Marginal note:Act committed during period

  (2) If, during a period that is established by regulations made under paragraph 12(1)(j.74) that relates to a patent, a person, in good faith, committed an act that would otherwise constitute an infringement of that patent, that act is not an infringement of the patent.

• Marginal note:Act committed after period

  (3) Subject to subsection (4), if — during a period established by regulations made under paragraph 12(1)(j.75) that relates to a patent — a person, in good faith, committed an act that would otherwise constitute an infringement of that patent or made serious and effective preparations to commit that act, it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the person commits the act after that period.

• Marginal note:Transfer

  (4) If the act referred to in subsection (3) is committed or the preparations to commit it are made in the course of a business and that business, or the part of that business in the course of which the act was committed or the preparations were made, is subsequently transferred,

  • (a) subsection (3) or paragraph (b), as the case may be, does not apply in respect of an act committed by the transferor after the transfer; and

  • (b) it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the transferee commits the act after the transfer.

• Marginal note:Use or sale of article

  (5) The use or sale of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if that article was acquired, directly or indirectly, from a person who, at the time they disposed of it, could, under subsection (2) or (3) or paragraph (4)(b), sell the article without infringing the patent or the certificate.

• Marginal note:Use of service

  (6) The use of a service is not an infringement of a patent if the service is provided by a person who, under subsection (2) or (3) or paragraph (4)(b), is able to provide it without infringing the patent.

• Marginal note:Use of article

  (7) Subject to subsection (8), the use of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if the article was acquired, directly or indirectly, from a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, in good faith, made or sold, or made serious and effective preparations to make or sell, an article that is substantially the same as the one used, for that use.

• Marginal note:Transfer

  (8) If the making or selling referred to in subsection (7) was done or the preparations to do so were made in the course of a business and that business, or the part of that business in the course of which the making or selling was done or the preparations were made, is subsequently transferred, then

  • (a) subsection (7) or paragraph (b), as the case may be, does not apply in respect of an article that is made or sold by the transferor after the transfer; and

  • (b) it is not an infringement of a patent or a certificate of supplemental protection referred to in subsection (7) to use an article for the use referred to in that subsection if it was made or sold for that use by the transferee after the transfer.

• Marginal note:Use of service

  (9) Subject to subsection (10), the use of a service is not an infringement of a patent if the service is provided by a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, provided, or made serious and effective preparations to provide, a service that is substantially the same as the one used, for that use.

• Marginal note:Transfer

  (10) If, during the period referred to in subsection (9), the service was provided or the preparations to provide it were made in the course of a business and that business, or the part of that business in the course of which the service was provided or the preparations to do so were made, is subsequently transferred, then, after the transfer

  • (a) the transferor is deemed to no longer be the person referred to in subsection (9) for the purposes of that subsection; and

  • (b) the transferee is deemed to be the person who provided the service for the purposes of subsection (9).