Hopkinson v. Canada ( Commissioner of Patents )
T-2153-91
Richard J.
13/6/97
14 pp.
Action for declaratory relief as to status, role, functions and authority of Patent Office-Patent Office merged into Directorate of Intellectual Property, renamed Canadian Intellectual Property Office (CIPO)-CIPO now run as Special Operating Agency within Department of Industry, i.e. considered by Government of Canada to be part of Department of Industry, but having more control over finances, long-term budgeting than normal for Directorate within Department-Patent Act setting up mechanism for filing applications for patent protection-Patent examiners examine applications to determine whether comply with requirements of Act-Following examination application either rejected or patent granted-Plaintiffs patent examiners hired through Public Service Commission-(1) Patent Office established by legislation-Functions mandated by legislation to be performed by Patent Office being carried out under direction of Commissioner regardless of name given to agency-(2) No requirement for delegation of authority from Commissioner to patent examiner because patent examiner not conferring any right-Commissioner, not patent examiner, granting patent-Fees paid to Commissioner-Commissioner may refuse application-Also Commissioner who may issue new or amended patent-(3) As part of Department of Industry, Patent Office in or under Department of Industry within Public Service Staff Relations Act, s. 2 definition of "Public Service"-Patent examiners members of Public Service; employer Treasury Board-(4) Patent Act, s. 6 providing for appointment of principal examiners, examiners, associate examiners and assistant examiners-Treasury Board establishing eight different classifications for persons who do patent examinations but not classifying such positions into four positions enumerated-Financial Administration Act, s. 11(2)(c) enabling Treasury Board to provide for classification of positions in Public Service, notwithstanding any other provision contained in any enactment-As patent examiners employees in Public Service, Treasury Board can provide for classification of positions-(5) Plaintiffs introducing evidence concerning use of temporary personnel from July 1, 1990 to June 30, 1991 to assist in dealing with backlog in patent applications-Patent Act, s. 35(1) stating Commissioner shall cause application for patent to be examined by competent examiners to be employed in Patent Office-Plaintiffs claiming temporary personnel not employed in Patent Office-Evidence concerning temporary help not relevant to central issues identified in statement of agreed facts, issues-Furthermore, no evidence of current situation, whether such conduct contrary to any collective agreement, whether Court proper forum for disposing of question-Inappropriate to grant relief requested-Patent Act, R.S.C., 1985, c. P-4, ss. 6, 35 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 12)-Financial Administration Act, R.S.C., 1985, c. F-11, s. 11-Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 "Public Service".