CIPO’s explanation and assessment method of due care
In the Patent Examination Guidelines MOPOP, CIPO outlines the specific content of the clause on request for restoration of rights, actions that can prove that due care has been taken, and CIPO’s approach to applicants filing requests for restoration of rights. (MOPOP Articles 9.04 and 27.03)
At the same time, CIPO lists all official decisions related to due care (due care) since 2022 on its website Determinations related to due care (Determinations related to due care (canada.ca) ) and publishes information about CIPO’s due care Interpretation of (due care) standards and all frequently asked questions regarding rights restoration requests handled before August 2023 and their results.
Among the situations listed by CIPO, many patent applications failed to successfully restore rights despite using due care clauses, such as:
- force majeure
- unexpected illness
- Fax or software submission failed
- Accounting system error
- Assistant's Human Error
The circumstances pointed out by CIPO that are conducive to the judgment of due care are:
- The applicant or patentee lacks funds
- Human error by the applicant, patentee, patent agent or other licensee
- Lack of knowledge by the applicant or patentee
- absentee office
CIPO emphasized that the focus of the request for restoration of rights is to emphasize the "actions taken after receiving the notification" and stated the reasons to show that "all relevant persons authorized by the respondent or the patentee to process the patent application have processed the patent application." due care” and ensure that requests for reinstatement and payment of late fees are completed before deadlines, including the Canadian agent of record releasing the applicant or patentee from the agency’s obligation to pay maintenance fees.
It is worth noting that CIPO emphasizes that if the applicant or patentee’s response to the rejection of the letter of intent contains reasons that CIPO previously considered irrelevant to the original request, these new reasons will not be accepted.
