First Green Park Pty. Ltd. v. Canada ( Attorney General )
T-1352-97
Muldoon J.
14/10/98
13 pp.
Judicial review of Commissioner of Patents' denial of request for extension of time to reinstate patent application filed pursuant to Patent Cooperation Treaty (PCT)-Applicant, Australian company, filing international patent application on August 8, 1991 for meat packaging system-Priority date August 9, 1990 because of earlier domestic application in Australia-Designated Canada in application-On March 3, 1992 applicant elected Canada under Chapter II of PCT for examination, issuance of national patent-February 9, 1993 deadline to enter national phase of process in Canada-Otherwise application deemed abandoned pursuant to Patent Cooperation Treaty Regulations, s. 15(2)-In accordance with Regulations, s. 15(3) deadline for reinstatement two months from date of deemed abandonment: April 9, 1993-Application deemed dead April 9, 1993-Practice in Patent Office allowing applicant to seek reinstatement by additional 10 months-No statutory authority for extension of deadline beyond two-month period-Applicant requesting extension to reinstate abandoned application 16 months after application deemed dead-Acting Commissioner denying request-Richard J. allowing application for judicial review of that decision (First Green Park Pty. Ltd. v. Canada (Attorney General), [1997] 2 F.C. 845 (T.D.)) on ground Acting Commissioner improperly fettering broad discretion to excuse delay conferred by PCT, Art. 48(2)(b) by refusing to exercise discretion where request for reinstatement made beyond self-imposed 12-month deadline-Commissioner subsequently decided not to reinstate applicant's international patent application-Application dismissed-Art. 48(2)(b) granting broad discretion on "Contracting State", not Commissioner, to excuse any delays for meeting time limit-Commissioner not equated with "Contracting State" as defined in Treaty, but rather deriving authority by virtue of Patent Act, s. 4-Since Commissioner neither party to treaty nor "Contracting State", only way may exercise authority to reinstate applications deemed dead through regulation passed by Governor in Council-No provision in PCT Regulations or treaty itself allowing Commissioner unilaterally to extend time beyond period specified in PCT Regulations, s. 15(3)-No basis for Commissioner to extend time for accepting applications beyond period specified in s. 15(3)-Commissioner not erring in law in refusing to extend time for reinstatement-Patent Cooperation Treaty, June 19, 1970, [1990] Can. T.S. No. 22, Art. 48(2)(b)-Patent Cooperation Treaty Regulations, SOR/89-453, s. 15(2), (3) (as am. by SOR/94-284, s. 4).