MOPOP - Chapter 2



Opening and inspection of applications

Table of Contents

2.01
Inspection of applications - April 2014

In accordance with Section 10 of the Patent Act, all applications that have been opened to public inspection, protests when associated with an opened application file, prior art filed pursuant to Section 34.1 of the Patent Act when associated with an opened application file, patents and re-examination files, and all documents associated with any of the above, shall be available for inspection by request at the Patent Office or through CIPO's online ordering form (see chapter 1.07 of the MOPOP).

A patent application open to public inspection will be said to be "opened" or "laid-open" in this manual.

2.01.01
Opening of applications

All patent applications, except those filed prior to October 1, 1989 and documents on file in connection therewith, shall be open to public inspection after the expiration of an eighteen-month confidentiality period (subsection 10(2) of the Patent Act). The confidentiality period is one of

  1. eighteen months from the Canadian filing date, or
  2. where a request for priority has been made, eighteen months from the earliest filing date of any previously regularly filed application on which the request for priority is based.

Applications filed under the Patent Cooperation Treaty (PCT) automatically include a designation for Canada. Such applications are published by the World Intellectual Property Organization (WIPO) eighteen months after filing or, where a request for priority has been made, eighteen months after the earliest priority date claimed.  If an application enters the national phase after the WIPO publication date, the application and any documents on file in connection therewith will be available for inspection in the Patent Office at the time the application enters the national phase.

In accordance with subsection 10(2) of the Patent Act, an applicant may make a written request to have an application opened to public inspection before the expiry of the confidentiality period.

A listing of applications opened to public inspection each week will appear in the Canadian Patent Office Record.

A PCT application entering the national phase in Canada after the date of publication by the International Bureau of WIPO will bear, as the laid-open date, the date of publication of the international application.

2.01.02
Effect of withdrawal on opening of applications

An application will not be laid open to the public if it has been withdrawn at least two months prior to the expiration of the confidentiality period or a later date if the technical preparations to open the application to public inspection can be stopped (Sections 91, 92 and 145 of the Patent Rules).

2.01.03
Confidentiality of unopened applications

Unopened applications are confidential.  Sections 10 and 11 of the Patent Act and sections 11, 91 and 92 of the Patent Rules apply.  The Patent Office is required to protect applicants' interests by ensuring that only authorized persons are allowed to inspect unopened files.  Applicants and authorized correspondents must provide identification when requesting access to a file. Persons permitted access by the authorized correspondent must provide identification and must furnish a signed document granting them authorization. The signed document must contain the patent application number and contact information of either the applicant or authorized correspondent, and must be signed by either the applicant or authorized correspondent. Inventors who have assigned all interest in their invention to others will not have access to an unopened file without authorization from the assignee or agent.  If an agent has been appointed and the inventor has retained some interest in the application, the inventor may see the file and discuss the case with the examiner in general terms but, in accordance with subsection 6(3) of the Patent Rules, an interview including a detailed discussion of the prosecution is permitted only in the agent's presence or with the agent's consent.  An examiner will not discuss matters relating to the prosecution of an application with persons other than the agent or those who have the agent's permission to discuss the application.

2.01.04
Effect of withdrawal of priority on opening to public inspection

A request for priority may be withdrawn at any time before a patent is issued.  If the applicant withdraws a request for priority before the expiry of the confidentiality period it may be possible to delay the opening of the application to public inspection (subsection 10(4) of the Patent Act). The withdrawal must be made within sixteen months of the filing date of the priority application, or a later date if the technical preparations to open the application to public inspection can be stopped (sections 91 and 145 of the Patent Rules).  The application will then be laid open to public inspection at the end of the new confidentiality period (eighteen months from the Canadian filing or eighteen months from the earliest of any other priority date, if more than one priority was claimed).

2.02
Numbering of applications - April 2014

An application for a patent filed after October 1, 1989 is given a unique number at filing. This number will be in the two million series of numbers and any patent issuing from such an application will bear the same number.  A reissued patent and a re-examined patent will bear the same number as the original patent.  Divisional applications are given a number in the two million series but different from the number of the original patent application.

Applications for patents filed prior to October 1, 1989 bear unique numbers. A patent issuing from such an application is given a unique number in the one million series. A divisional application arising from such an application will be given a number that is different from the number given to the original patent application.  An application for reissue will also be given a unique number that differs from the original patent number.

2.02.01
Information relating to applications identified by serial numbers

On payment of the fee set out in Schedule II, item 24, the Patent Office will indicate whether a Canadian application identified by serial number has issued to patent.

2.03
Validity and interpretation of patents - April 2014

An issued patent granted by the Patent Office is presumed valid under section 43 of the Patent Act unless the Canadian court system decides otherwise or if the patent is made subject to reissue or re-examination procedures.  Employees of the Patent Office may not comment on the validity of any issued patent, nor may they discuss how claims of any issued patent should be interpreted, or express a view as to whether they would be infringed by any proposal presented.  Any member of the public requesting information of this type is advised to seek advice from a registered patent agent or a patent lawyer.


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