Economic Action Plan 2015 Act, No. 1 (S.C. 2015, c. 36)
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Assented to 2015-06-23
PART 3VARIOUS MEASURES
R.S., c. P-4Patent Act
50. Subsection 5(2) of the Patent Act is replaced by the following:
Marginal note:Absence, inability to act or vacancy
(2) 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.
51. Section 8 of the Act is repealed.
52. Section 11 of the Act is repealed.
53. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (g):
(g.1) 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;
(2) Paragraph 12(1)(j.5) of the Act is replaced by the following:
(j.5) respecting divisional applications, including the time period within which divisional applications may be filed and the persons who may file divisional applications;
(j.51) defining “one invention” for the purposes of section 36;
(3) Subsection 12(1) of the Act is amended by adding the following after paragraph (j.8):
(j.81) respecting the correction of obvious errors in documents submitted to the Commissioner or the Patent Office or in patents or other documents issued under this Act, including
(i) the determination of what constitutes an obvious error, and
(ii) the effect of the correction;
54. The Act is amended by adding the following after section 16:
Marginal note:Privileged communication
16.1 (1) 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:
(a) it is between an individual whose name is entered on the register of patent agents and that individual’s client;
(b) it is intended to be confidential; and
(c) it is made for the purpose of seeking or giving advice with respect to any matter relating to the protection of an invention.
Marginal note:Waiver
(2) Subsection (1) does not apply if the client expressly or implicitly waives the privilege.
Marginal note:Exceptions
(3) 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).
Marginal note:Patent agents — country other than Canada
(4) A communication between an individual who is authorized to act as 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 an individual whose name is entered on the register of patent agents and that individual’s client is deemed to be a communication that meets the conditions set out in paragraphs (1)(a) to (c).
Marginal note:Individual acting on behalf of patent agent or client
(5) For the purposes of this section, an individual whose name is entered on the register of patent agents or an individual who is authorized to act as 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.
Marginal note:Application
(6) 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.
55. Section 26 of the Act is replaced by the following:
Marginal note:Annual report
26. The Commissioner shall, in each year, cause to be prepared and laid before Parliament a report of the Commissioner’s activities under this Act.
56. Subsection 26.1(1) of the Act is repealed.
57. The portion of subsection 28.4(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Multiple previously regularly filed applications
(4) If two or more applications have been previously regularly filed as described in paragraph 28.1(1)(a), subparagraph 28.2(1)(d)(i) or paragraph 78.3(1)(a) or (2)(a), either in or for the same country or in or for different countries,
58. (1) Subsections 38.2(1) and (2) of the Act are replaced by the following:
Marginal note:Amendments to specifications and drawings
38.2 (1) Subject to subsections (2) to (3.1) and the regulations, the specification and drawings contained in an application for a patent in Canada may be amended before the patent is issued.
Marginal note:Restriction
(2) The specification and drawings contained in an application, other than a divisional application, may not be amended to add matter that cannot reasonably be inferred from the specification or drawings contained in the application on its filing date.
(2) Subsection 38.2(4) of the Act is replaced by the following:
Marginal note:Divisional application
(3.1) The specification and drawings contained in a divisional application may not be amended to add matter
(a) that may not be or could not have been added, under subsection (2) or (3) or this subsection, to the specification and drawings contained in the application for a patent from which the divisional application results; or
(b) that cannot reasonably be inferred from the specification or drawings contained in the divisional application on the date on which the Commissioner, in respect of that application, receives the prescribed documents and information or, if they are received on different dates, on the latest of those dates.
Marginal note:Non-application of subsections (2) to (3.1)
(4) Subsections (2) to (3.1) do not apply if it is admitted in the specification that the matter is prior art with respect to the application.
Marginal note:Application subject to regulations
(5) Subsections (2) to (3.1) apply subject to any regulations made under paragraph 12(1)(j.81).
59. Subparagraph 55.11(1)(a)(iii) of the Act is replaced by the following:
(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);
60. Section 62 of the Act is repealed.
61. (1) The portion of subsection 68(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Contents of applications
68. (1) Every application presented to the Commissioner under section 65 shall
(2) Subsection 68(2) of the Act is replaced by the following:
Marginal note:Service
(2) The Commissioner shall consider the matters alleged in the application and declarations referred to in subsection (1) and, if satisfied that the applicant has a bona fide interest and that a case for relief has been made, the Commissioner shall direct the applicant to serve copies of the application and declarations on the patentee or the patentee’s representative for service and on any other persons appearing from the records of the Patent Office to be interested in the patent, and the applicant shall advertise the application both
(a) in the Canada Gazette, and
(b) on the website of the Canadian Intellectual Property Office or in any other prescribed location.
62. (1) Subsection 73(1) of the Act is amended by adding “or” at the end of paragraph (d), by striking out “or” at the end of paragraph (e) and by repealing paragraph (f).
(2) Subsections 73(4) and (5) of the Act are replaced by the following:
Marginal note:Filing date
(5) An application that is reinstated retains its filing date.
63. Section 78 of the Act is replaced by the following:
Marginal note:Time period extended
78. (1) If a time period fixed under this Act 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.
64. Paragraphs 78.22(a) and (b) of the Act are replaced by the following:
(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), sections 8.1, 15 and 15.1, paragraph 31(2)(a) and sections 38.1, 49, 78 and 78.2.
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