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Законодательство разных стран по торговым маркам и интеллектуальной собственности |
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RULES RESPECTING
THE PATENT ACT |
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1. These Rules may be cited
as the Patent Rules. |
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“Act” means the Patent Act;
(Loi) |
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“amino acid sequence”
means |
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(a) an unbranched sequence
of four or more contiguous amino acids, and |
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(b) any peptide or protein
that includes abnormal linkages, cross links and end caps, non-peptidyl
bonds or the like; (séquence d’acides aminés) |
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“amino acids” means those L-amino
acids commonly found in naturally occurring proteins and such amino acids
when they have been modified; (acides aminés) |
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“application” means, except as
otherwise provided by these Rules, an application for a patent or for the
reissue of a patent; (demande) |
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“associate patent agent” means a
patent agent appointed by another patent agent in accordance with section 21;
(coagent) |
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“authorized correspondent” means,
in respect of an application, |
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(a) where the application
was filed by the inventor, where no transfer of the inventor’s right to
the patent or of the whole interest in the invention has been registered
in the Patent Office and where no patent agent has been
appointed |
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(i) the sole inventor, |
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(ii) one of two or more joint
inventors authorized by all such inventors to act on their joint behalf,
or |
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(iii) where there are two or
more joint inventors and no inventor has been authorized in accordance
with subparagraph (ii),
the first inventor named in the petition or, in the case of PCT national
phase applications, the first inventor named in the international
application, |
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(b) where an associate
patent agent has been appointed or is required to be appointed pursuant to
section 21,
the associate patent agent, or |
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“Budapest Treaty” means the
Budapest Treaty on the International Recognition of the Deposit of
Microorganisms for the Purposes of Patent Procedure, done at Budapest
on April 28, 1977, to which Canada is a party; (Traité de
Budapest) |
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“description” means the part of a
specification other than the claims, referred to in section 80;
(description) |
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“international application” means
an application filed under the Patent Cooperation Treaty; (demande
internationale) |
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“nucleotide sequence” means an
unbranched sequence of 10 or more contiguous nucleotides;
(séquence de nucléotides) |
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“nucleotides” means those
nucleotides that can be represented using the symbols set out in
section 115 and such nucleotides when they have been modified;
(nucléotides) |
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“patent agent” means any person or
firm whose name is entered on the register of patent agents pursuant to section 15;
(agent de brevets) |
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“Patent Cooperation Treaty” means
the Patent Cooperation Treaty, done at Washington on
June 19, 1970, including any amendments, modifications and
revisions made from time to time to which Canada is a party; (Traité de
coopération en matière de brevets) |
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“PCT national phase application”
means an international application in respect of which the applicant has
complied with the requirements of subsection 58(1) and, where
applicable, subsection 58(2); (demande PCT à la phase
nationale) |
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“Regulations under the Budapest
Treaty” means the Regulations under the Budapest Treaty on the
International Recognition of the Deposit of Microorganisms for the
Purposes of Patent Procedure; (Règlement d’exécution du Traité de
Budapest) |
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“Regulations under the PCT” means
the Regulations under the Patent Cooperation Treaty; (Règlement
d’exécution du PCT) |
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“sequence listing” means, in
respect of an invention, a part of the description describing nucleotide
or amino acid sequences and giving other related information required by
sections 113 to 130; (listage des séquences) |
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“small entity” in respect of an
invention, means an entity that employs 50 or fewer employees or that
is a university, but does not include an entity that |
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(a) has transferred or
licensed, or is under a contractual or other legal obligation to transfer
or license, any right in the invention to an entity, other than a
university, that employs more than 50 employees, or |
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(b) has transferred or
licensed, or is under a contractual or other legal obligation to transfer
or license, any right in the invention to an entity that employs
50 or fewer employees or that is a university, and has knowledge of
any subsequent transfer or license of, or of any subsisting contractual or
other legal obligation to transfer or license, any right in the invention
to an entity, other than a university, that employs more than
50 employees; (petite entité) |
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“the Act as it read immediately
before October 1, 1989” means the provisions of the Patent
Act as it read immediately before October 1, 1989 subject,
where applicable, to any amendments to the Patent Act coming into
force |
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(a) after
October 1, 1989 and before October 1, 1996,
or |
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(b) after
October 1, 1996; (Loi dans sa version antérieure au
1er octobre 1989) |
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“transfer” means a change in
ownership of a patent, of an application or of an interest in an invention
and includes an assignment. (transfert) |
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PART
I
RULES OF GENERAL APPLICATION |
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3. Where a person takes any
proceeding or requests that any service be rendered by the Commissioner or
by the Patent Office, the person shall pay to the Commissioner the
appropriate fee, if any, set out in Schedule II for that proceeding
or service. |
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(1) The Commissioner shall, upon
request, refund fees in accordance with subsections (2)
to (15). |
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(2) Where an application is not
accepted by the Commissioner because it does not meet the requirements
referred to in section 93, 147 or 178 entitling it to a filing date,
the fee paid shall be refunded, less $25. |
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(3) Where an application is
submitted to the Commissioner by mistake and the Commissioner is notified
before the application has been assigned a number that the application is
to be withdrawn, the fee paid on the withdrawn application shall be
refunded, less $25. |
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(4) Where, through inadvertence,
more than one application is filed for the same invention, by or on behalf
of the same person, and where any one of such applications is withdrawn
before examination, any fee paid on the withdrawn application shall be
refunded, less one-half of the filing fee. |
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(5) Where the Commissioner sends a
notice to the applicant pursuant to subsection 94(1) and the
applicant does not comply with the requisition set out in that notice, any
fee paid pursuant to that subsection shall be refunded, less
$25. |
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(6) Where a fee is paid by an
applicant or a patentee on the basis that it is not a small entity, no
refund shall be made solely for the reason that it is later determined
that it was at the time of payment a small entity. |
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(7) Where a fee to register any
document relating to a patent or an application is received and the
document is not submitted, the fee paid shall be refunded. |
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(8) Where a request for the
reinstatement of an abandoned application is received and the applicant
does not comply with the requirements for reinstatement, any fee paid for
reinstatement shall be refunded, less one-half of the reinstatement
fee. |
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(9) Where a request for the
reinstatement of an abandoned application is refused, any fee paid for
reinstatement shall be refunded. |
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(10) A final fee referred to in
subsection 30(1) or (5) shall be refunded if |
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(a) it is received during
the prosecution of an application and the application is subsequently
refused or abandoned; |
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(b) a request for its
return is received before the start of technical preparations for issue;
or |
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(c) it is submitted by a
person who is not the authorized correspondent. |
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(11) Where a candidate for the
Patent Agents’ Examination withdraws the candidate’s name by written
notice to the Commissioner received |
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(a) before March 1 of
the year of the examination, the fee paid shall be refunded; or |
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(b) on or after
March 1 of the year of the examination and before the date of the
examination, the fee paid shall be refunded, less $25. |
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(12) When the fee received with a
request for a copy of a document is insufficient and the request is
cancelled, the fee paid shall be refunded. |
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(14) Subject to subsections (2)
to (13)
and (15),
any fee paid by mistake for copies of a document that the Patent Office
does not have or paid in excess of the fee prescribed shall be
refunded. |
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(15) No refund shall be made if
the amount of the refund amounts to less than $1 or if the refund results
from the exchange on foreign currency. |
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(1) All correspondence intended
for the Commissioner or the Patent Office shall bear the indication: “The
Commissioner of Patents”. |
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(2) Subject to subsection (3),
correspondence addressed to the Commissioner shall be considered to
be received by the Commissioner on the day that it is delivered to one of
the following establishments, where the delivery is made during the
business hours of that establishment: |
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(a) the Patent Office;
or |
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(b) an establishment that is
designated by the Commissioner in the Canadian Patent Office Record
as an establishment to which correspondence addressed to the Commissioner
may be delivered. |
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(3) Where correspondence addressed
to the Commissioner is delivered outside of business hours to an
establishment referred to in paragraph (2)(a)
or (b),
it shall be considered to be received by the Commissioner on the next
working day. |
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(4) Subject to subsection (5),
where the Commissioner has, in accordance with section 8.1 of the
Act, specified in the Canadian Patent Office Record that
correspondence may be transmitted by facsimile, correspondence transmitted
by facsimile shall be considered to be received by the Commissioner on the
day that it is transmitted, where the facsimile is transmitted to the
Commissioner before midnight, local time, where the Patent Office is
situated. |
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(5) Where correspondence is
transmitted by facsimile on a day that the Patent Office is closed for
business, it shall be considered to be received by the Commissioner on the
next working day. |
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(1) Except as provided by the Act
or these Rules, for the purpose of prosecuting or maintaining an
application the Commissioner shall only communicate with, and shall only
have regard to communications from, the authorized
correspondent. |
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(2) For the purpose of appointing,
in respect of an application, a patent agent or an associate patent agent
or of revoking the appointment of a patent agent or an associate patent
agent, the Commissioner shall have regard to communications from any of
the applicant, the patent agent and the associate patent agent. |
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(3) Interviews with members of the
Patent Office staff in respect of an application may be held during the
business hours of the Patent Office by |
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(a) the authorized
correspondent; |
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(b) the applicant, with the
permission of the authorized correspondent; or |
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(c) an appointed
non-resident patent agent, with the permission of the associate patent
agent. |
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7. Communications addressed
to the Commissioner in relation to an application shall include |
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(a) the name of the applicant
or inventor; |
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(b) the application number,
if one has been assigned by the Patent Office; and |
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(c) the title of the
invention. |
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(1) Subject to subsection (2),
communications addressed to the Commissioner in relation to an application
or a patent shall relate to one application or patent only. |
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(2) Subsection (1)
does not apply in respect of communications relating to |
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(a) a transfer, a licence or
a security interest; |
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(b) a change in the name or
address of an applicant, a patentee, a patent agent, an associate patent
agent or a representative for service; or |
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(c) fees to maintain an
application in effect or to maintain the rights accorded by a
patent. |
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9. An authorized
correspondent shall provide the Commissioner with its complete address and
any communication sent by the Commissioner or by the Patent Office to the
authorized correspondent at that address shall be considered to be sent on
the date that it bears. |
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10. Communications
addressed to the Commissioner pursuant to section 34.1
of the Act and communications addressed to the Commissioner with the
stated or apparent intention of protesting against the granting of a
patent shall be acknowledged, but, subject to section 10
of the Act or of the Act as it read immediately before
October 1, 1989, no information shall be given as to the action
taken. |
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11. Except as provided by
section 11
of the Act, the Commissioner and the Patent Office shall not provide
any information respecting an application that is not open to public
inspection to any person other than the authorized correspondent, the
applicant or a person authorized by the authorized correspondent or the
applicant to receive the information. |
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Entry of Patent
Agents on Register of Patent Agents |
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(1) Subject to subsection 14(2),
for the purpose of having their name entered on the register of patent
agents, a person is eligible to sit for the qualifying examination for
patent agents referred to in section 14
if, on March 31 of the year in which the person proposes to sit for
the examination, |
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(a) the person resides in
Canada and has been employed for a period of at least 12 months on
the examining staff of the Patent Office; or |
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(b) the person resides in
Canada and has worked in Canada in the area of Canadian patent law and
practice, including the preparation and prosecution of applications, for a
period of at least 12 months. |
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(2) A person referred to in paragraph (1)(b)
shall file with the Commissioner an affidavit or statutory declaration
setting out the person’s experience and responsibilities in the area of
patent law and practice. |
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(1) An Examining Board is hereby
established for the purpose of preparing, administering and marking the
qualifying examination for patent agents referred to in section 14. |
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(2) The members of the Examining
Board shall be appointed by the Commissioner, and the chairperson and at
least three other members shall be employees of the Patent Office and at
least five members shall be patent agents nominated by the Patent and
Trademark Institute of Canada. |
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(1) The Examining Board shall
administer a qualifying examination for patent agents every year in the
month of April. |
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(2) The Commissioner shall give
notice in the Canadian Patent Office Record of the date of the
qualifying examination and shall indicate in the notice that any person
who proposes to sit for the examination shall, within the time specified
in the notice, notify the Commissioner in writing and pay the fee set out
in item 34 of Schedule II. |
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(3) The Commissioner shall
designate the place or places where the qualifying examination is to be
held and shall notify by registered mail, at least two weeks before the
date of the examination, every person who has complied with the
requirements set out in subsection (2). |
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15. The Commissioner shall
enter on the register of patent agents, on payment of the fee set out in
item 33 of Schedule II, the name of |
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(a) any resident of Canada
who has demonstrated a good knowledge of Canadian patent law and practice
by passing the qualifying examination for patent agents relating to patent
law and practice; |
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(b) any resident of a
country other than Canada who is registered and in good standing with the
patent office of that country or with a regional patent office for that
country; and |
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(c) any firm, if the name of
at least one member of the firm is entered on the register. |
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(1) During the period beginning on
January 1 and ending on March 31 in every year |
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(a) every person who is a
resident of Canada and whose name is entered on the register of patent
agents shall pay the fee set out in item 35 of Schedule II in
order to maintain the person’s name on the register; |
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(b) every person who is a
resident of another country and whose name is entered on the register of
patent agents shall, in order to maintain the person’s name on the
register, file a statement, signed by the person, indicating the person’s
country of residence and stating that the person is registered and in good
standing with the patent office of that country or with a regional patent
office for that country; and |
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(c) every firm whose name
is entered on the register of patent agents shall, in order to maintain
its name on the register, file a statement indicating each member of the
firm whose name is entered on the register, signed by a duly authorized
member of the firm whose own name is entered on the register. |
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(2) The Commissioner shall send to
every patent agent who fails to comply with subsection (1)
a notice requiring compliance within the three-month period after the date
of the notice. |
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(3) The Commissioner shall remove
from the register of patent agents the name of any patent agent
who |
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(b) no longer meets the
requirements by virtue of which the name of the patent agent was entered
on the register. |
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(4) The removal by the
Commissioner of the name of a person from the register of patent agents
constitutes a refusal to recognize that person as a patent agent for the
purposes of section 16
of the Act. |
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17. Where the name of a
patent agent has been removed from the register of patent agents pursuant
to subsection 16(3),
it may be reinstated on the register if the patent agent |
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(a) applies to the
Commissioner, in writing, for reinstatement within the one-year period
after the date on which the name of the patent agent was removed from the
register; |
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(b) pays the fee set out in
item 36 of Schedule II for applying for reinstatement on the
register; |
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(c) pays the fee referred to
in paragraph 16(1)(a)
for maintaining the name of the patent agent on the register or files the
statement referred to in paragraph 16(1)(b)
or (c),
as the case may be; and |
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(d) meets the requirements
referred to in section 15
for entry of the name of the patent agent on the register. |
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18. Any decision of the
Commissioner, pursuant to section 16
of the Act, to refuse to recognize a person as a patent agent shall be
forthwith entered in the register of patent agents and published in the
Canadian Patent Office Record, and a copy shall be sent by
registered mail to the person referred to in the decision. |
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(1) When the Commissioner makes a
decision pursuant to section 16
of the Act that a person be refused recognition as a patent agent, any
correspondence respecting an application sent by the Commissioner or by
the Patent Office to that person within the six-month period preceding the
date of the decision and to which no reply has been made by that date is
deemed not to have been sent to the applicant. |
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(2) An application filed by a
person who has been refused recognition as a patent agent by the
Commissioner or an application that includes an appointment of such a
person as patent agent of the applicant or as associate patent agent shall
be treated by the Commissioner as an application filed by the applicant or
by the patent agent who appointed the associate patent agent. |
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Appointment of
Patent Agents |
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(1) An applicant who is not an
inventor shall appoint a patent agent to prosecute the application for the
applicant. |
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(2) The appointment of a patent
agent shall be made in the petition or by submitting to the Commissioner a
notice signed by the applicant. |
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(3) The appointment of a patent
agent may be revoked by submitting to the Commissioner a notice of
revocation signed by the applicant or that patent agent. |
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(1) Every patent agent who does
not reside in Canada and who is appointed as the patent agent for an
applicant in respect of an application shall appoint as the associate
patent agent in respect of the application a patent agent who resides in
Canada. |
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(2) Every patent agent who resides
in Canada and who is appointed as the patent agent for an applicant in
respect of an application may appoint as the associate patent agent in
respect of the application a patent agent who resides in Canada. |
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(3) The appointment of an
associate patent agent shall be made in the petition or by submitting to
the Commissioner a notice signed by the patent agent who appointed the
associate patent agent. |
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(4) The appointment of an
associate patent agent may be revoked by submitting to the Commissioner a
notice of revocation signed by the associate patent agent or the patent
agent who appointed the associate patent agent. |
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22. Any act by or in
relation to a patent agent or an associate patent agent shall have the
effect of an act by or in relation to the applicant. |
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23. Where an applicant is
not the inventor and no patent agent residing in Canada has been appointed
or any such appointment has been revoked, the Commissioner shall by notice
requisition either that the applicant appoint a patent agent residing in
Canada or, where a non-resident patent agent has been appointed, that the
non-resident patent agent appoint an associate patent agent, within the
three-month period after the date of the notice. |
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24. Where a patent agent
withdraws from practice, any patent agent who is the successor to that
patent agent and who has so established to the Commissioner, shall be
considered to be the appointed patent agent until another patent agent is
appointed, in respect of any application in which the patent agent who has
withdrawn from practice has been appointed. |
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25. Except where other
times are provided by the Act or these Rules, the time within which action
must be taken by an applicant where the Commissioner, by notice,
requisitions the applicant to take any action necessary for compliance
with the Act or these Rules is the three-month period after the
requisition is made. |
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(1) Subject to subsection (2)
and any other provision of these Rules, except in respect of Part V,
the Commissioner is authorized to extend the time fixed by these Rules or
by the Commissioner under the Act for doing anything, subject to both the
extension being applied for and the fee set out in item 22 of
Schedule II being paid before the expiry of that time, where the
Commissioner is satisfied that the circumstances justify the
extension. |
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(2) Where, for the purposes of
paragraph 73(1)(a) of the Act, the Commissioner establishes a
shorter period for replying in good faith to any requisition made by an
examiner in connection with an examination, the Commissioner is not
authorized to extend the time for replying beyond six months after the
requisition is made. |
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(1) Except in respect of
Part V, the Commissioner is authorized to extend the time fixed by subsection 18(2)
of the Act, subject to the fee set out in item 22 of
Schedule II being paid, where the Commissioner is satisfied that the
circumstances justify the extension. |
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(2) Except in respect of
Part V, where the applicant is sent a notice in accordance with
subsection 30(7), the Commissioner is authorized to extend the time
fixed by paragraph 73(1)(f) of the Act where the Commissioner
is satisfied that the circumstances justify the extension. |
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(1) Subject to subsection (2),
the Commissioner may advance an application for examination out of
its routine order upon the request of any person who pays the fee set out
in item 4 of Schedule II, where the Commissioner determines that
failure to advance the application is likely to prejudice that person’s
rights. |
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ГЛАВНАЯ
ТОРГОВЫЕ МАРКИ
МАГАЗИН ТОРГОВЫХ
