MOPOP - Chapter 5


Filing and completion requirements

Table of Contents

5.01

Scope of this chapter - June 2015

This chapter applies to applications other than PCT national phase applications.

For applications filed under the provisions of the Patent Cooperation Treaty (PCT), see Chapter 22 of this Manual.

5.02

Filing of applications - June 2015

An application for a patent shall be addressed to "The Commissioner of Patents" and shall be considered to be received by the Commissioner (i.e. filed) on the date of reception [see section 1.04 of Chapter 1]. The requirements for receiving a filing date are set out in subsection 28(1) of the Patent Act.

Subsection 28(1) of the Patent Act provides that

The filing date of an application for a patent in Canada is the date on which the Commissioner receives the documents, information and fees prescribed for the purposes of this section or, if they are received on different dates, the last date.

5.03

Requirements for a filing date - June 2015

To obtain a filing date under subsection 28(1) of the Patent Act an application must conform to the requirements of subsection 27.1(1) of the Patent Rules. It must include:

  1. an indication, in English or French, that the granting of a Canadian patent is sought,
  2. the applicant's name,
  3. the applicant's address or that of their patent agent,
  4. a document, in English or French, that on its face appears to describe an invention, and
  5. either (A) a small entity declaration in accordance with section 3.01 of the Patent Rules and the small entity fee set out in item 1 of Schedule II as it read at the time of receipt, or (B) the standard fee set out in that item.

5.04

Completing the application - September 2017

Section 94 of the Patent Rules provides that even if an application has been given a filing date it remains incomplete unless it meets the requirements set out under subsection 94(2) of the Patent Rules at the time of filing.

Subsection 94(2) of the Patent Rules requires that certain information and documents, if not supplied at the time of filing, be supplied in order to complete the application. The requirements are that:

In all cases of incomplete applications, the Patent Office will make every effort to inform the applicant of the reasons for noncompliance by means of a courtesy letter. The time limit to complete an application without paying the completion fee is the 15-month period after the filing date of the application or, if a request for priority has been made in respect of the application, the 15-month period after the earliest filing date of any previously regularly filed application on which the request for priority is based. The purpose of not requiring a fee for completing an application during the above period is to ensure that all documents listed above arrive at the Patent Office in a timely manner and in the proper format for laying open to public inspection under section 10 of the Patent Act.

Pursuant to subsection 94(1) of the Patent Rules, if on the expiry of the applicable 15-month period the application is still not complete, the Commissioner shall, by notice to the applicant, requisition the applicant to complete the application and pay the fee set out in item 2 of Schedule II, before the expiry of the later of the 3-month period after the date of the notice and the 12-month period after the filing date of the application. Failure to complete the application or to pay the fee within the time period specified in the notice will result in abandonment of the application.


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