Since Canada amended the Patent Law and Implementing Regulations to implement the Patent Law Treaty (PLT) in 2019, Canada has undergone important changes in implementing rights restoration requests. In some cases, applicants or patent rights People need to submit a "due care" reason to the Canadian Intellectual Property Office (CIPO) to explain the failure to pay the maintenance fee on time.
An important feature of the PLT is that CIPO is required to provide notice to patent applicants before patent rights are lost. Therefore, CIPO has revised and introduced a notification system for non-timely payment of certain fees, including maintenance fees. The potential benefit of this system is that fewer rights holders/patent applicants will miss the maintenance fee payment deadline.
According to the current provisions of Canadian patent law, the applicant or patentee has the longer of the following two periods:
- Two months from the latest notification date
- Within 6 months from the original period of missed maintenance fees and late payment periods.
If the fee is not paid, the patent application will be deemed to be abandoned or the patent rights will be lost.
If an application that is deemed to be abandoned or a patent that is deemed to have expired files a request for restoration of rights, the applicant or patentee must file a request within 12 months from the date of the application that is deemed to be abandoned or the patent application that is deemed to have expired, or within 12 months from the date of the application that is deemed abandoned or the patent application that is deemed to have expired. Within 18 months from the original patent maintenance fee deadline, file a request for rights restoration and pay the maintenance fee, late fee and rights request restoration fee. The applicant or patentee must provide reasons stating that although they have paid "due care" to the patent application, they failed to pay the maintenance fees and late fees in time for some reason.
If CIPO rejects the request for restoration of rights, a "Letter of Intent to Reject" will be issued, and the applicant or patentee shall respond within 30 days from the date of issuance.
