The Timing of Filing a Patent Application
copyright 1997, 1998 Donald M. Cameron, Aird & Berlis
Cameron's Canadian Patent & Trade Secrets Law: Home Page; Index
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The Timing of Filing a Patent Application
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You are too late to apply for a patent in Canada if :
1. You waited more than a year to apply after you and your disclosees made the invention available to the public in Canada or elsewhere [Patent Act, s. 28.2(1)(a)]..
or
2. Someone else made it public before your claim date. It became "available to the public in Canada or elsewhere" [Patent Act, s. 28.2(1)(b)].
or
3. They filed first. In other words:
someone else filed a patent application in Canada for the same invention that has a filing date before your claim date. [Patent Act, s. 28.2(1)(c)] or
someone else filed in Canada after you did, but filed an application for the same invention in Canada or in another country before your claim date, and filed the new application in Canada within a year of the earlier filing and made a priority request in respect of the other application. In other words - they filed for the invention first. [Patent Act, s. 28.2(1)(d)]
"Claim date" means the date of a claim in an application for a patent in Canada, as determined in accordance with section 28.1. [Patent Act, s. 2]. Crudely speaking, it is first filing date for the claim anywhere.
Generally, the date of a claim in an application for a patent in Canada (the "pending application") is the filing date of the application [Patent Act, s. 28.1].
If however, there is a previously regularly filed application for the same invention in Canada [Patent Act, s. 28.1(a)(i)] or in another country from where a priority claim may be made for a Canadian application [Patent Act, s. 28.1(a)(ii)] and the previously filed application was filed less than 12 month s before the current application [Patent Act, s. 28.1(b)] and a request for priority has been claimed [Patent Act, s. 28.1(c)], then the claim date is the filing date of the previously regularly filed application [Patent Act, s. 28.1(2)].
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