Some Changes to Canadian Patent Law

Changes to Late National Phase Entry

When filing a National Phase of a PCT application in Canada, you need to be aware of the following changes to the Patent Regulations for late entry:

• If the International Filing Date is before October 30, 2019, the deadline for national entry is 30 months from the earliest priority date – or 42 months from the earliest priority date with payment of a $200 late entry fee (no change from current practice).
• If the International Filing Date is after October 30, 2019, the deadline is still 30 months from the earliest priority date. However, there are new restrictions for late entry after the 30-month deadline and up to 42 months from the earliest priority date.  The applicant must now:
  • explicitly request reinstatement of rights
  • provide a statement that the reason for failure to enter the national phase by the 30-month deadline was unintentional
  • pay the $200 late fee

Our understanding is that the Canadian Patent Office will not require anything more than a statement that the failure to meet the 30-month deadline was unintentional – that is – no detailed reasons will be required.  Nevertheless, we recommend that if you have clients that wish to enter the national phase in Canada, you inform them that the 42-month late entry deadline should NOT be relied on or used to purposely extend the 30-month deadline.

Restoration of Priority

With the changes that came into effect on October 30, 2019 applicants may now restore the right of priority within 2 months of the filing date in Canada.  However, if the right of priority is restored during the International Phase, it will not be deemed restored in Canada unless the international filing date is on or after October 30, 2019.