PATENTS |
Practice |
Pfizer Inc. v. Canada (Commissioner of Patents)
A-429-99
Isaac J.A.
2/11/00
9 pp.
Appeal from Motions Judge's order allowing respondent's application for judicial review and ordering reinstatement of respondents' patent application after deemed abandoned for non-payment of annual maintenance fees--After failure to pay maintenance fees for patent application, notice of abandonment sent to respondent, then, mistakenly, notice of reinstatement, and finally, notice of abandonment--Motions Judge concluded although statutory requirements for reinstatement not met, application validly reinstated by issuance of notice of reinstatement as neither Act nor Rules gave Commissioner of Patents right to withdraw or retract notice of reinstatement--Appeal allowed--Act, s. 73(3) clearly providing reinstatement will occur not when Patent Office issues notice of reinstatement, but if three statutory requirements met: request for reinstatement made, omission remedied, reinstatement fee paid--Furthermore, Rules, s. 152 clearly requiring request for reinstatement of patent application be made within 12 months from date on which patent application deemed abandoned--Herein, request clearly outside statutory time limit--Therefore, application could not be reinstated in law--Conclusion patent application abandoned and not reinstated supported by Granger v. Canada (Employment and Immigration Commission), [1986] 3 F.C. 70 (C.A.); confd [1989] 1 S.C.R. 141--Patent Act, R.S.C., 1985, c. P-4, s. 73(3) (as am. by S.C. 1993, c. 15, s. 52)--Patent Rules, SOR/96-243, s. 152.