Time

1.0 Introduction

This document provides guidance on topics related to time ranging from the dates communications are deemed received, to time limits and how they are calculated to extensions of time under the Patent Act and the Patent Rules.

2.0 Ordinary Business Hours of the Office

The ordinary business hours are 8:30 a.m. to 4:30 p.m. (local time). The Office is open Monday to Friday, except for the following statutory holidays:

2.1 Unexpected Closures of the Office

In the case of adverse weather events or other emergencies, the Office may close to the public for all or part of a day when it would otherwise be open for business. Unexpected closures will be announced on the Office's website and social media. For information about the dates accorded to documents submitted to the Office and about extensions of time in these situations, please see the Time document.

3.0 Dates Accorded to Written Communications

The dates accorded to documents, information and fees submitted to the Patent Office or written communications sent from the Commissioner or the Patent Office are outlined below.

3.1 Physical Delivery by Mail or In Person to the Office

Written communications delivered to the Office by mail or in person on a day when the Office is open to the public will be deemed received on the date of delivery. Those delivered when the Office is closed to the public are deemed to be received on the next day the Office is open to the public. (subsection 10(2) of the Patent Rules)

3.2. Physical Delivery to Designated Establishments – Regional Offices of ISED

Written communications delivered to designated establishments - which are regional offices of Innovation, Science and Economic Development Canada listed in the Written Communications document - when they are open to the public, , will be deemed to be received on the date of delivery to that designated establishment only if it is also a day on which CIPO is open to the public. Written communications delivered to a designated establishment on a day when CIPO is closed to the public will be considered to be received on the next day on which CIPO is open to the public. For example, written communications delivered to the designated establishment in Toronto on June 24 will not be deemed received on that date since it prescribed day when CIPO is closed to the public. It will be deemed received on the next day CIPO is open to the public. (subsection 10(3) of the Patent Rules)

3.3 Physical Delivery to Designated Establishments - Registered Mail™ and Xpresspost™ services of Canada Post

Written communications delivered through the Registered Mail™ and Xpresspost™ services of Canada Post are deemed received on the day indicated on the mailing receipt provided by Canada Post, only if it is also a day on which CIPO is open to the public. If the date indicated on the mailing receipt provided by Canada Post is a day on which CIPO is closed to the public, the written communication will be deemed received on the next day CIPO is open to the public. (subsection 10(3) of the Patent Rules)

3.4 Submission by Electronic Means

Written communications delivered by electronic means of transmission, online or facsimile as outlined in the Written Communications document, will be considered to be received on the day that it is transmitted if it is delivered and received before midnight, local time at CIPO. Please note that for facsimiles, the date of receipt will be the date when the transmission ends. (Subsection 8.1(1) of the Patent Act and subsection 10(4) of the Patent Rules).

3.5 Written Communications Sent from the Commissioner or the Patent Office

Written communications sent from the Commissioner of Patents or the Patent Office are deemed sent on the date that the communication bears, whether that is the letter or notice sent by mail or in the email attachment. (section 7 of the Patent Rules)

4.0 Time Limits

There are multiple time limits set in the Patent Act and Patent Rules for submitting documents, information and fees. Time limits are usually expressed as requiring an action within a certain number of months after a specified day.

4.1 Calculation of Time Limits

When an action is required to be taken within a fixed number of months from a specified day, the time limit is calculated by:

  1. Counting forward from the specified day the number of months, without including the month in which the day falls,
  2. Excluding the specified day, and
  3. Including in the last month counted from a. above the day that has the same calendar number as the specified day, or if that month has no day with that number, the last day of that month.

A few examples are listed below for illustrative purposes:

Example 1: An examiner's requisition dated January 15 requires a response within four months therefore the time limit for a response is May 15 of the same year.

Example 2: The maintenance fee for an application is due on Aug 29, 30 or 31 and it is not paid by the due date. The Commissioner's Notice is sent on September 15 requiring the applicant to pay the fee and late fee before the later of 2 months from the date of the notice or 6 months from the maintenance fee due date. The later date is 6 months from the maintenance fee due date or February 28 (or February 29 in leap years) of the following year.

Example 3: A Commissioner's notice sent under section 68 of the Rules requiring the applicant to comply within three months of the notice is sent on March 31. The applicant is required to respond by June 30.

5.0 Extensions of Time

There are provisions in the Patent Act and Patent Rules which extend time in certain circumstances as described below.

5.1 Time Period Extended for Prescribed and Designated Days

Where a time period to complete an action ends on a prescribed or on a day designated by the Commissioner, the time period is deemed extended to the next day that is not a prescribed day or a designated day. (Subsection 78(1) of the Patent Act)

5.1.1. Prescribed Days

The prescribed days are listed in section 5 of the Patent Rules and are copied here for convenience of reference:

  1. Saturday
  2. Sunday
  3. January 1, or if January 1 falls on a Saturday or a Sunday, the following Monday
  4. Good Friday
  5. Easter Monday
  6. the Monday before May 25
  7. June 24, or if June 24 falls on a Saturday or a Sunday, the following Monday
  8. July 1, or if July 1 falls on a Saturday or a Sunday, the following Monday
  9. the first Monday in AugustFootnote 1
  10. the first Monday in September
  11. the second Monday in October
  12. November 11, or if November 11 falls on a Saturday or a Sunday, the following Monday
  13. December 25 and 26, or
    1. If December 25 falls on a Friday, that Friday and the following Monday, and
    2. If December 25 falls on a Saturday or Sunday, the following Monday and Tuesday
  14. Any day on which the Patent Office is closed to the public for all or part of the day during ordinary business hours

An example of a deemed extension of time for a prescribed day is provided below for illustrative purposes:

A notice of allowance dated July 11 requires payment of the final fee within four months of the date of the notice (November 11).

5.1.1.1. Unplanned Closures of the Office

In the case of adverse weather events or other emergencies, the Office may close to the public for all or part of a day when it would otherwise be open to the public. Unexpected closures will be announced on the Office's website and social media. These unplanned closures are included in prescribed days (paragraph 5(n) of the Patent Rules and described above in section 5.1.1., bullet n.) for the purposes of subsection 78(1) of the Patent Act, and if the time period ends on that day, the time period is extended to the next day the Office is open to the public.

5.1.2. Designated Days – Force Majeure

The Commissioner may designate a day or days when there is a "force majeure" event and it is in the public interest to do so (subsection 78(2) of the Patent Act). This provision allows the Commissioner to suspend obligations when unforeseen circumstances arise making it impossible for applicants and patentees to fulfill their obligations as normal. Any designation of a day or days by the Commissioner will be published on the Office's website and the time periods that end on the designated day(s) will be extended to the next day the Office is open to the public under subsection 78(1) of the Patent Act.

5.2 Requests for Extensions of Time – Subsection 3(1) of the Patent Rules

The Commissioner has the authority to extend time limits for certain actions under the Patent Rules if the Commissioner is satisfied that the circumstances justify the extension and the other administrative conditions are met. Applicants and patentees can, before the expiry of a time limit, request an extension of time for actions where it is permitted by the Rules (please see Annex 1 below for a list of exceptions where extensions of time are not permitted). Please note time limits fixed under the Patent Act cannot be extended.

The request for extension of time must be submitted before the expiry of the original time limit and the requestor must pay the prescribed fee of $200 (Item 1 of Schedule 2 of the Patent Rules). While no affidavit is required when requesting an extension of time, the applicant must provide a justification that explain why the required actions cannot be completed within the time period originally set. The Office will assess the request and if it is satisfactory, the Commissioner will generally grant an extension of time of up to six months per file and per action. The applicant/patentee will be notified by letter of the Commissioner's decision regarding any request for an extension of time for time periods which can be extended.

Examples of actions eligible for extension of time

Subsequent requests for an extension of time for the same action on the same file will only be considered under exceptional circumstances.

Examples of what could amount to exceptional circumstances that would justify a further extension of time:

5.3 Extension of Time to 'Top-up' Small Entity Fees – Subsection 3(3) of the Patent Rules

The Commissioner is authorized to extend the period of time, whether it has expired or not, to pay most fees paid at the small entity rate if the Commissioner consider the circumstances justify the extension and if the following requirements are met:

  1. The small entity fee was paid before the expiry of the time period for payment of the fee;
  2. It is later determined that the standard fee should have been paid;
  3. The applicant or patentee files a statement that, to the best of their knowledge, the small entity fee was paid in good faith and that the application for the extension is being filed without undue delay after the applicant or patentee became aware that the standard fee should have been paid;
  4. The applicant or patentee pays the difference between the amount of the small entity fee that was paid and the standard fee that was applicable on the day on which the small entity fee was paid; and
  5. The applicant or patentee pays the $200 extension of time fee (Item 1 of Schedule 2 of the Patent Rules).

The applicant will be notified by letter of the Commissioner's decision regarding any request for an extension of time. The following fees are eligible for a top-up:

This also includes the equivalent fees paid under the former Rules through transitional provisions back to June 2, 2007. Fees paid at the small entity rate before that date are not eligible to be 'topped-up'.

Please note that the Office will accept a single request and statement (paragraph 3(3)(c) of the Patent Rules) to cover the top-up of multiple fees at the small entity rate so long as the applicant/patentee pays the $200 extension of time fee for each fee previously paid at the small entity rate that is being "topped-up" as well as the difference for each fee.

Where the applicant or patentee has successfully "topped-up" all the previous small entity fees for the application or patent to a standard rate, the Office will update the entity size in its records and all future fees and corresponding notices and letters will list the fee at the standard rate. If not all the fees have been "topped-up", the entity size in the Office records will remain small for the purposes of fees, corresponding notices and letters. Applicants and patentees may still pay any future fees at the standard rate though the difference will remain on file at the Office and be available for refund within three years of payment upon request.

6.0 Time Limits under the Patent Cooperation Treaty

Rule 80.5 of the Regulations under the PCT provides: If the expiration of any period during which any document or fee must reach a national Office or intergovernmental organization falls on a day:

  1. On which such Office or organization is not open to the public for the purposes of the transaction of official business;
  2. On which ordinary mail is not delivered in the locality in which such Office or organization is situated;
  3. Which, where such Office or organization is situated in more than one locality, is an official holiday in at least one of the localities in which such Office or organization is situated, and in circumstances where the national law applicable by that Office or organization provides, in respect of national applications, that, in such a case, such period shall expire on a subsequent day; or
  4. Which, where such Office is the government authority of a Contracting State entrusted with the granting of patents, is an official holiday in part of that Contracting State, and in circumstances where the national law applicable by that Office provides, in respect of national applications, that, in such a case, such period shall expire on a subsequent day;

the period shall expire on the next subsequent day on which none of the said four circumstances exists.

CIPO takes the position that section 26 of the Interpretation Act applies to PCT international applications filed in Canada. Accordingly, where a person has a time limit under the PCT for the filing of a document in Canada that expires on a provincial or territorial holiday but only delivers the document on the next day that is not a holiday, CIPO will assume that the document was delivered to an establishment that would justify an extension of the time limit. CIPO, however, takes no position as to whether such extensions would be recognized by other countries, and it will be the responsibility of the person filing the document to ensure that in other countries of interest they are properly entitled to any needed extension of the time limit by reason of Rule 80.5 of the Regulations under the PCT or some other applicable law.

Annex 1 - Non-application of subsection 3(1)

While extension of time may be granted for certain actions, there are time limits that are fixed under the Act and the Rules and that subsection 3(1) does not apply in those circumstances. The following is a list of actions for which the Commissioner cannot grant extension of time:

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