Bill C-43

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AMENDMENTS TO THE EXCISE TAX ACT (GST/HST MEASURES) AND A RELATED TEXT

R.S., c. E-15

Excise Tax Act

2012, c. 31, s. 74(2)

92. (1) The definition “participating employer” in subsection 123(1) of the Excise Tax Act is replaced by the following:

“participating employer”
« employeur participant »

“participating employer” of a pension plan means

(a) in the case of a registered pension plan, an employer that has made, or is required to make, contributions to the pension plan in respect of the employer’s employees or former employees, or payments under the pension plan to the employer’s employees or former employees, and includes an employer prescribed for the purposes of the definition “participating employer” in subsection 147.1(1) of the Income Tax Act, and

(b) in the case of a pooled registered pension plan, an employer that

(i) has made, or is required to make, contributions to the pension plan in respect of all or a class of its employees or former employees, or

(ii) has remitted, or is required to remit, to the PRPP administrator of the pension plan contributions made by members (as defined in subsection 147.5(1) of the Income Tax Act) of the pension plan under a contract with the PRPP administrator in respect of all or a class of its employees;

1990, c. 45, s. 12(1)

(2) The definition “substantial renovation” in subsection 123(1) of the Act is replaced by the following:

“substantial renovation”
« rénovations majeures »

“substantial renovation” of a residential complex means the renovation or alteration of the whole or that part of a building, as described in whichever of paragraphs (a) to (e) of the definition “residential complex” is applicable to the residential complex, in which one or more residential units are located to such an extent that all or substantially all of the building or part, as the case may be, other than the foundation, external walls, interior supporting walls, floors, roof, staircases and, in the case of that part of a building described in paragraph (b) of that definition, the common areas and other appurtenances, that existed immediately before the renovation or alteration was begun has been removed or replaced if, after completion of the renovation or alteration, the building or part, as the case may be, is, or forms part of, a residential complex;

1990, c. 45, s. 12(1)

(3) Paragraph (a) of the definition “builder” in subsection 123(1) of the Act is amended by adding “and” at the end of subparagraph (i) and by repealing subparagraph (ii).

2012, c. 31, s. 74(2)

(4) The portion of the definition “pension plan” in subsection 123(1) of the Act before paragraph (c) is replaced by the following:

“pension plan”
« régime de pension »

“pension plan” means a registered pension plan or a pooled registered pension plan

(a) that governs a person that is a trust or that is deemed to be a trust for the purposes of the Income Tax Act,

(b) in respect of which a corporation

(i) is incorporated and operated either

(A) solely for the administration of the plan, or

(B) for the administration of the plan and for no other purpose other than acting as trustee of, or administering, a trust governed by a retirement compensation arrangement (as defined in subsection 248(1) of the Income Tax Act), where the terms of the arrangement provide for benefits only in respect of individuals who are provided with benefits under the plan,

(ii) in the case of a registered pension plan, is accepted by the Minister, under subparagraph 149(1)(o.1)(ii) of the Income Tax Act, as a funding medium for the purpose of the registration of the plan under that Act, and

(iii) in the case of a pooled registered pension plan, is a corporation

(A) that is described in paragraph 149(1)(o.2) of the Income Tax Act, and

(B) all of the shares, and rights to acquire shares, of the capital stock of which are owned, at all times since the date on which it was incorporated, by the plan, or

(5) Subsection 123(1) of the Act is amended by adding the following in alphabetical order:

“pooled registered pension plan”
« régime de pension agréé collectif »

“pooled registered pension plan” has the same meaning as in paragraph 149(5)(a);

“PRPP administrator”
« administrateur de RPAC »

“PRPP administrator” of a pooled registered pension plan has the meaning assigned by the definition “administrator” in subsection 147.5(1) of the Income Tax Act;

“registered pension plan”
« régime de pension agréé »

“registered pension plan” has the same meaning as in paragraph 149(5)(a);

(6) Subsections (1), (4) and (5) are deemed to have come into force on December 14, 2012.

(7) Subsections (2) and (3) apply in respect of

(a) any supply by way of sale of a residential complex made after April 8, 2014;

(b) any supply by way of sale (other than a taxable supply deemed to have been made under section 191 of the Act) of a residential complex made by a person on or before April 8, 2014 if

(i) the supply would have been a taxable supply had the definitions “substantial renovation” and “builder” in subsection 123(1) of the Act, as amended by subsections (2) and (3), applied in respect of the supply, and

(ii) an amount as or on account of tax in respect of the supply was charged, collected or remitted under Part IX of the Act on or before that day; and

(c) any taxable supply of a residential complex that would have been deemed under section 191 of the Act to have been made by a person at a particular time on or before April 8, 2014 if the definitions “substantial renovation” and “builder” in subsection 123(1) of the Act, as amended by subsections (2) and (3), had applied at that time, provided that the person has reported an amount as or on account of tax, as a result of the person applying section 191 of the Act in respect of the complex, in the person’s return under Division V of Part IX of the Act

(i) for any reporting period the return for which is filed on or before April 8, 2014 or is required under that Division to be filed on or before a day that is on or before April 8, 2014, or

(ii) for any reporting period that begins on or before April 8, 2014 the return for which

(A) is required under that Division to be filed on or before a particular day that is after April 8, 2014, and

(B) is filed on or before the particular day referred to in clause (A).

(8) For the purposes of Part IX of the Act, if a person

(a) makes, at a particular time that is after April 8, 2014, a supply by way of sale of a residential complex that is a taxable supply, but that would not be a taxable supply if the definitions “substantial renovation” and “builder” in subsection 123(1) of the Act applied as they read before this Act receives royal assent, and

(b) has not claimed or deducted an amount (in this subsection referred to as an “unclaimed credit”) in respect of property or a service in determining the net tax for any reporting period of the person the return for which is filed on or before April 8, 2014 or is required under Division V of Part IX of the Act to be filed on or before a day that is on or before April 8, 2014 and

(i) the property or service, in a particular reporting period that ends on or before April 8, 2014,

(A) was acquired, imported or brought into a participating province for consumption or use in making the taxable supply, or

(B) was, in relation to the complex, acquired, imported or brought into a participating province and would have been acquired, imported or brought into the participating province for consumption or use in making the taxable supply if the definitions “substantial renovation” and “builder” in subsection 123(1) of the Act were read as amended by subsections (2) and (3), and

(ii) the unclaimed credit is, or would be if the definitions “substantial renovation” and “builder” in subsection 123(1) of the Act were read as amended by subsections (2) and (3), an input tax credit of the person,

the unclaimed credit of the person is deemed to be an input tax credit of the person for the reporting period of the person that includes April 8, 2014 and not to be an input tax credit of the person for any other reporting period.

93. (1) Paragraph 149(5)(a) of the Act is amended by adding the following after subparagraph (i):

(i.1) a pooled registered pension plan,

(2) Subsection (1) applies in respect of any taxation year of a person that ends on or after December 14, 2012.

94. (1) The definition “excluded activity” in subsection 172.1(1) of the Act is amended by striking out “or” at the end of paragraph (d) and by adding the following after that paragraph:

(d.1) if the pension plan is a pooled registered pension plan, compliance by a participating employer of the pension plan as a PRPP administrator of the pension plan with requirements under the Pooled Registered Pension Plans Act or a similar law of a province, provided the activity is undertaken exclusively for the purpose of making a taxable supply of a service to a pension entity of the pension plan that is to be made

(i) for consideration that is not less than the fair market value of the service, and

(ii) at a time when no election under subsection 157(2) made jointly by the participating employer and the pension entity is in effect; or

(2) Subsection (1) applies in respect of any fiscal year of a person ending on or after December 14, 2012.

1997, c. 10, s. 38(1)

95. (1) Paragraph 191.1(2)(e) of the Act is replaced by the following:

(e) the amount determined by the formula

A + B + C + D

where

A is the total of all amounts each of which is an amount determined by the formula

E × (F/G)

where

E is an amount of tax, calculated at a particular rate, that was payable under subsection 165(1) or section 212, 218 or 218.01 by the builder in respect of an acquisition of real property that forms part of the complex or addition or in respect of an acquisition or importation of an improvement to real property that forms part of the complex or addition,

F is the rate set out in subsection 165(1) at the time referred to in paragraph (a), and

G is the particular rate,

B is the total of all amounts each of which is an amount determined by the formula

H × (I/J)

where

H is an amount (other than an amount referred to in the description of E) that would have been payable as tax, calculated at a particular rate, under subsection 165(1) or section 212, 218 or 218.01 by the builder in respect of an acquisition or importation of an improvement to real property that forms part of the complex or addition but for the fact that the improvement was acquired or imported for consumption, use or supply exclusively in the course of commercial activities of the builder,

I is the rate set out in subsection 165(1) at the time referred to in paragraph (a), and

J is the particular rate,

C is

(i) if the complex or addition is situated in a participating province, the total of all amounts each of which is an amount determined by the formula

K × (L/M)

where

K is an amount of tax, calculated at a particular rate, that was payable under subsection 165(2), 212.1(2) or 218.1(1) or Division IV.1 by the builder in respect of an acquisition of real property that forms part of the complex or addition or in respect of an acquisition, importation or bringing into the participating province of an improvement to real property that forms part of the complex or addition,

L is the tax rate for the participating province at the time referred to in paragraph (a), and

M is the particular rate, and

(ii) in any other case, zero, and

D is

(i) if the complex or addition is situated in a participating province, the total of all amounts each of which is an amount determined by the formula

N × (O/P)

where

N is an amount (other than an amount referred to in the description of K) that would have been payable as tax, calculated at a particular rate, under subsection 165(2), 212.1(2) or 218.1(1) or Division IV.1 by the builder in respect of an acquisition, importation or bringing into the participating province of an improvement to real property that forms part of the complex or addition but for the fact that the improvement was acquired, imported or brought into the participating province for consumption, use or supply exclusively in the course of commercial activities of the builder,

O is the tax rate for the participating province at the time referred to in paragraph (a), and

P is the particular rate, and

(ii) in any other case, zero.

(2) Subsection (1) applies in respect of any supply of a residential complex, or of an addition to a residential complex, deemed under any of subsections 191(1) to (4) of the Act to have been made on or after April 1, 2013 except that, if the construction or last substantial renovation of the complex or addition began on or before April 8, 2014, the amount determined under paragraph 191.1(2)(e) of the Act in respect of the supply is equal to the lesser of the amount determined under that paragraph as amended by subsection (1) and the amount that would be determined under that paragraph if subsection (1) had not come into force.

(3) If, in assessing the net tax of a person under section 296 of the Act for a reporting period of the person, an amount was taken into consideration as tax deemed to have been collected under any of subsections 191(1) to (4) of the Act in respect of a supply of a residential complex or of an addition to a residential complex and by reason of the application of paragraph 191.1(2)(e), as amended by subsection (1), the amount or part of the amount is not deemed, under whichever of subsections 191(1) to (4) of the Act is applicable, to have been collected as tax in respect of the supply, the person is entitled until the day that is one year after the day on which this Act receives royal assent to request in writing that the Minister of National Revenue make an assessment, reassessment or additional assessment for the purpose of taking into account that the amount or the part of the amount, as the case may be, is not deemed to have been collected by the person as tax and, on receipt of the request, the Minister must with all due dispatch

(a) consider the request; and

(b) under section 296 of the Act, assess, reassess or make an additional assessment of the net tax of the person for any reporting period of the person and of any interest, penalty or other obligation of the person, but only to the extent that the assessment, reassessment or additional assessment may reasonably be regarded as relating to the amount or the part of the amount, as the case may be.

96. (1) Section 259 of the Act is amended by adding the following after subsection (4.1):

Rebate for health care facility

(4.11) Despite subsections (3), (4) and (4.1), if a person (other than a person that is a qualifying non-profit organization or a selected public service body described in any of paragraphs (a) to (d) of the definition “selected public service body” in subsection (1)) is a charity for the purposes of this section only because the person is a non-profit organization that operates, otherwise than for profit, one or more health care facilities within the meaning of paragraph (c) of the definition of that expression in section 1 of Part II of Schedule V, no amount in respect of property or a service is to be included in determining a rebate to be paid under this section to the person in respect of the property or service except to the extent to which the person intended, at the relevant time, to consume, use or supply the property or service

(a) in the course of activities engaged in by the person in the course of operating those health care facilities; or

(b) if the person is designated to be a municipality for the purposes of this section in respect of activities specified in the designation, in the course of those activities.

Extent of consumption, use or supply — relevant time

(4.12) Where reference is made to a relevant time in subsection (4.11) for the purposes of determining the extent to which a person intended to consume, use or supply property or a service in the course of certain activities in relation to an amount in respect of the property or service, the relevant time is

(a) in the case of an amount of tax in respect of a supply made to, or an importation or bringing into a participating province by, the person at any time, that time;

(b) in the case of an amount deemed to have been paid or collected at any time by the person, that time;

(c) in the case of an amount required to be added under subsection 129(7) in determining the person’s net tax as a result of a branch or division of the person becoming a small supplier division at any time, that time; and

(d) in the case of an amount required to be added under paragraph 171(4)(b) in determining the person’s net tax as a result of the person ceasing, at any time, to be a registrant, that time.

(2) Subsection (1) applies for the purposes of determining a rebate under section 259 of the Act for which an application is filed on or after April 8, 2004.

2010, c. 12, s. 75(2)

97. (1) The definition “pension contribution” in subsection 261.01(1) of the Act is repealed.

2010, c. 12, s. 75(2)

(2) The definition “pension rebate amount” in subsection 261.01(1) of the Act is replaced by the following:

“pension rebate amount”
« montant de remboursement de pension »

“pension rebate amount” of a pension entity of a pension plan for a claim period of the pension entity means the amount determined by the formula

A × B

where

A is

(a) if the pension plan is a registered pension plan, 33%,

(b) if the pension plan is a pooled registered pension plan and either employer contributions or employee PRPP contributions were made to the pension plan in the particular calendar year that is the last calendar year ending on or before the last day of the claim period, the amount (expressed as a percentage) determined by the formula

33% × (C/D)

where

C is the total of all amounts, each of which is determined for an employer that made employer contributions to the pension plan in the particular calendar year by the formula

C₁ + C₂

where

C1 is the total of all amounts, each of which is an employer contribution made by the employer to the pension plan in the particular calendar year, and

C2 is the total of all amounts, each of which is an employee PRPP contribution made by an employee of the employer to the pension plan in the particular calendar year, and

D is the total of all amounts contributed to the pension plan in the particular calendar year,

(c) if the pension plan is a pooled registered pension plan, neither employer contributions nor employee PRPP contributions were made to the pension plan in the particular calendar year that is the last calendar year ending on or before the last day of the claim period and it is reasonable to expect that employer contributions will be made to the pension plan in a following calendar year, the amount (expressed as a percentage) determined for the first calendar year in which employer contributions are reasonably expected to be made to the pension plan following the particular calendar year by the formula

33% × (E/F)

where

E is the total of all amounts, each of which is determined for an employer reasonably expected to make employer contributions to the pension plan in that first calendar year by the formula

E₁ + E₂

where

E1 is the total of all amounts, each of which is an employer contribution reasonably expected to be made by the employer to the pension plan in that first calendar year, and

E2 is the total of all amounts, each of which is an employee PRPP contribution reasonably expected to be made by an employee of the employer to the pension plan in that first calendar year, and

F is the total of all amounts reasonably expected to be contributed to the pension plan in that first calendar year, or

(d) if the pension plan is a pooled registered pension plan and paragraphs (b) and (c) do not apply, 0%; and

B is the total of all amounts, each of which is an eligible amount of the pension entity for the claim period.

2010, c. 12, s. 75(2)

(3) Paragraph (a) of the definition “qualifying employer” in subsection 261.01(1) of the Act is replaced by the following:

(a) if employer contributions were made to the pension plan in the immediately preceding calendar year, made employer contributions to the pension plan in that year; and

2010, c. 12, s. 75(2)

(4) Paragraphs (a) and (b) of the definition “qualifying pension entity” in subsection 261.01(1) of the Act are replaced by the following:

(a) listed financial institutions made 10% or more of the total employer contributions to the pension plan in the last preceding calendar year in which employer contributions were made to the pension plan; or

(b) it can reasonably be expected that listed financial institutions will make 10% or more of the total employer contributions to the pension plan in the next calendar year in which employer contributions will be required to be made to the pension plan.

(5) Subsection 261.01(1) of the Act is amended by adding the following in alphabetical order:

“employee PRPP contribution”
« cotisation RPAC de salarié »

“employee PRPP contribution” means a contribution by an employee of an employer to a pooled registered pension plan that

(a) may be deducted by the employee under paragraph 60(i) of the Income Tax Act in computing their income; and

(b) is remitted by the employer to the PRPP administrator of the plan under a contract with the PRPP administrator in respect of all or a class of the employees of the employer.

“employer contribution”
« cotisation d’employeur »

“employer contribution” means a contribution by an employer to a pension plan that may be deducted by the employer under paragraph 20(1)(q) of the Income Tax Act in computing its income.

2010, c. 12, s. 75(3)

(6) Subparagraph (i) of the description of C in paragraph 261.01(6)(a) of the Act is replaced by the following:

(i) in the case where employer contributions were made to the pension plan in the calendar year that immediately precedes the calendar year that includes the last day of the claim period (in this paragraph referred to as the “preceding calendar year”), the amount determined by the formula

D/E

where

D is the total of all amounts, each of which is

(A) an employer contribution made by the qualifying employer to the pension plan in the preceding calendar year, or

(B) an employee PRPP contribution made by an employee of the qualifying employer to the pension plan in the preceding calendar year, if the qualifying employer made employer contributions to the pension plan in the preceding calendar year, and

E is the total of all amounts, each of which is

(A) if the pension plan is a registered pension plan, an employer contribution made to the pension plan in the preceding calendar year, or

(B) if the pension plan is a pooled registered pension plan, an amount contributed to the pension plan in the preceding calendar year,

2010, c. 12, s. 75(3)

(7) Paragraph (a) of the description of C in subsection 261.01(9) of the Act is replaced by the following:

(a) in the case where employer contributions were made to the pension plan in the calendar year (in this subsection referred to as the “preceding calendar year”) that immediately precedes the calendar year that includes the last day of the claim period, the amount determined by the formula

E/F

where

E is the total of all amounts, each of which is

(A) an employer contribution made by the qualifying employer to the pension plan in the preceding calendar year, or

F is the total of all amounts, each of which is

(A) if the pension plan is a registered pension plan, an employer contribution made to the pension plan in the preceding calendar year, or

(B) if the pension plan is a pooled registered pension plan, an amount contributed to the pension plan in the preceding calendar year,

(8) Subsections (1) to (5) are deemed to have come into force on December 14, 2012.

(9) Subsections (6) and (7) apply in respect of any claim period of a person ending on or after December 14, 2012.

98. (1) Part V of Schedule VI to the Act is amended by adding the following after section 6.2:

6.3 A supply made to a non-resident person that is not registered under Subdivision d of Division V of Part IX of the Act of

(a) a service of refining a metal to produce a precious metal; or

(b) an assaying, gem removal or similar service supplied in conjunction with the service referred to in paragraph (a).

(2) Subsection (1) applies to

(a) any supply made after April 8, 2014; and

(b) any supply made on or before that day if the supplier did not, on or before that day, charge or collect an amount as or on account of tax under Part IX of the Act in respect of the supply.

(3) If, in determining the net tax of a person as reported in a return under Division V of Part IX of the Act filed on or before April 8, 2014 for a reporting period that ended after 2010, an amount was taken into account by the person as tax that became collectible by the person in respect of a supply and, by reason of the application of subsection (1), no tax was collectible by the person in respect of the supply, then

(a) for the purposes of section 261 of the Act, the amount is deemed to have been paid by the person; and

(b) subsections 261(2) and (3) of the Act do not apply to a rebate under section 261 of the Act in respect of the amount if the person files an application for the rebate before the later of the day that is one year after the day on which this Act receives royal assent and the day that is two years after the day on which the return was filed.

SOR/2001-171

Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations

99. (1) Paragraph (a) of the definition “manager” in subsection 1(1) of the Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations is replaced by the following:

(a) in the case of a pension entity of a registered pension plan, the administrator, as defined in subsection 147.1(1) of the Income Tax Act, of the pension plan;

(a.1) in the case of a pension entity of a pooled registered pension plan, the PRPP administrator of the pension plan; and

(2) Subsection (1) is deemed to have come into force on December 14, 2012.

PART 3

2002, c. 22

EXCISE ACT, 2001

100. (1) Section 181 of the Excise Act, 2001 is replaced by the following:

Refund of duty — destroyed tobacco products

181. (1) The Minister may refund to a tobacco licensee the duty paid on a tobacco product that is re-worked or destroyed by the tobacco licensee in accordance with section 41 if the licensee applies for the refund within two years after the tobacco product is re-worked or destroyed.

Refund of inventory tax — destroyed domestic cigarettes

(2) The Minister may refund to a tobacco licensee the tax imposed and payable under Part 3.1 on taxed cigarettes, as defined in section 58.1, if

(a) the licensee provides evidence satisfactory to the Minister that the cigarettes were manufactured in Canada, that they were re-worked or destroyed by the licensee in accordance with section 41 and that either

(i) the cigarettes were taxed cigarettes of the licensee and the tax was paid by the licensee, or

(ii) the cigarettes were taxed cigarettes of a particular person that is not the licensee, the tax was paid by that particular person and an amount equal to the tax was paid by the licensee to that particular person on account of that tax; and

(b) the licensee applies for the refund within two years after the taxed cigarettes are re-worked or destroyed.

Refund of inventory tax — destroyed imported cigarettes

(3) The Minister may refund to a particular person the tax imposed and payable under Part 3.1 on taxed cigarettes, as defined in section 58.1, if

(a) the particular person provides evidence satisfactory to the Minister that the cigarettes were imported by the particular person, that they were destroyed by the particular person in accordance with the Customs Act or the Customs Tariff and that either

(i) the cigarettes were taxed cigarettes of the particular person and the tax was paid by the particular person, or

(ii) the cigarettes were taxed cigarettes of another person that is not the particular person, the tax was paid by the other person and an amount equal to the tax was paid by the particular person to the other person on account of that tax; and

(b) the particular person applies for the refund within two years after the taxed cigarettes are destroyed.

(2) The portion of subsection 181(3) of the Act before paragraph (a), as enacted by subsection (1), is replaced by the following:

Refund of inventory tax — destroyed imported cigarettes

(3) The Minister may refund to a particular person the tax imposed and payable under Part 3.1 on taxed cigarettes, as defined in section 58.1, other than cigarettes in respect of which duty has been imposed under section 53, if

(3) Subsection (1) is deemed to have come into force on February 12, 2014.

(4) Subsection (2) comes into force on December 1, 2019.

2007, c. 18, s. 110(1)

101. (1) Section 181.1 of the Act is replaced by the following:

Refund of duty — destroyed imported tobacco

181.1 (1) The Minister may refund to a duty free shop licensee the duty under section 53 that was paid on imported manufactured tobacco that is destroyed by the licensee in accordance with the Customs Act if the licensee applies for the refund within two years after the tobacco is destroyed.

Refund of inventory tax — destroyed imported cigarettes

(2) The Minister may refund to a duty free shop licensee the tax imposed and payable under Part 3.1 on taxed cigarettes, as defined in section 58.1, of the licensee in respect of which duty has been imposed under section 53, if

(a) the licensee provides evidence satisfactory to the Minister that

(i) the cigarettes were taxed cigarettes of the licensee and the tax was paid by the licensee, and

(ii) the cigarettes were destroyed by the licensee in accordance with the Customs Act; and

(b) the licensee applies for the refund within two years after the cigarettes are destroyed.

(2) Subsection (1) comes into force on December 1, 2019.

PART 4

VARIOUS MEASURES

Division 1

Intellectual Property

R.S., c. I-9

Industrial Design Act

Amendments to the Act

102. Section 2 of the Industrial Design Act is amended by adding the following in alphabetical order:

“Convention”
« Convention »

“Convention” means the Convention of the Union of Paris made on March 20, 1883, including any amendments and revisions made from time to time to which Canada is a party;

“country of the Union”
« pays de l’Union »

“country of the Union” means

(a) a country that is a member of the Union for the Protection of Industrial Property constituted under the Convention, or

(b) a member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act;

1992, c. 1, s. 79

103. Section 3 of the Act is replaced by the following:

3. (1) The Minister shall cause to be kept a register called the Register of Industrial Designs, which shall contain the prescribed information and statements in respect of designs that are registered under this Act.

Evidence

(2) The Register of Industrial Designs is evidence of its contents, and a copy of an entry in the Register is evidence of the particulars of the entry if the copy is certified as a true copy by the Minister, by the Commissioner of Patents or by an officer, clerk or employee of the Commissioner’s office.

Admissibility

(3) A copy appearing to have been certified under subsection (2) is admissible in evidence in any court.

1993, c. 15, s. 13

104. (1) Subsection 4(1) of the Act is replaced by the following:

Application to register design

4. (1) The proprietor of a design, whether the first proprietor or a subsequent proprietor, may apply to register the design by paying the prescribed fees and filing with the Minister an application that contains

(a) the name of the finished article in respect of which the design is to be registered;

(b) a representation of the design that complies with any prescribed requirements; and

(2) Section 4 of the Act is amended by adding the following after subsection (2):

Filing date

(3) The filing date of an application in Canada is the date on which the Minister receives the prescribed documents, information and statements or, if they are received on different dates, the latest of those dates.

R.S., c. 10 (4th Supp.), s. 21; 1992, c. 1, s. 81 and s. 143(1) (Sch. VI, item 16(E)); 1993, c. 15, ss. 13, 15 and 16; 1993, c. 44, s. 162

105. Sections 5 to 9 of the Act are replaced by the following:

Examination of application for registration

5. The Minister shall examine, in accordance with the regulations, each application for the registration of a design.

Refusal of application

6. (1) The Minister shall refuse an application for the registration of a design and notify the applicant of the refusal if the Minister is satisfied that the design is not registrable.

Registration of design

(2) If the Minister is not so satisfied, the Minister shall register the design and notify the applicant of the registration.

Registrable design

7. A design is registrable if

(a) the application is filed in accordance with this Act;

(b) the design is novel, within the meaning of section 8.2;

(d) the design does not consist only of features that are dictated solely by a utilitarian function of the finished article; and

(e) the design is not contrary to public morality or order.

Priority date

8. (1) The priority date of a design in an application for the registration of a design (in this section and section 8.1 referred to as the “pending application”) is the filing date of the application, unless

(a) the pending application is filed by a person

(i) who, on the filing date of the pending application, is a citizen or national of, or is domiciled in, a country of the Union or has a real and effective industrial or commercial establishment in a country of the Union, and

(ii) who has, or whose predecessor in title has, previously regularly filed an application for the registration of a design disclosing the same design in or for a country of the Union;

(b) the filing date of the pending application is within six months after the filing date of the previously regularly filed application; and

(c) the applicant has made a request for priority in respect of the pending application on the basis of the previously regularly filed application.

Filing date of previously regularly filed application

(2) In the circumstances set out in paragraphs (1)(a) to (c), the priority date of the design is the filing date of the previously regularly filed application.

Request for priority

8.1 (1) For the purposes of section 8, an applicant for the registration of a design may submit to the Minister a request for priority in respect of the pending application on the basis of one or more previously regularly filed applications.

Requirements

(2) The request for priority shall be made in accordance with the regulations, and the applicant shall submit to the Minister the filing date, the name of the country or office of filing and the number of each previously regularly filed application on which that request is based.

Request deemed never filed

(3) A request for priority is deemed never to have been filed if the request is not made in accordance with the regulations or if the applicant does not submit the information, other than the number of each previously regularly filed application, that is required under subsection (2).

Withdrawal of request

(4) An applicant may, in accordance with the regulations, withdraw a request for priority, either entirely or with respect to one or more previously regularly filed applications.

Multiple previously regularly filed applications

(5) If more than one application has been previously regularly filed either in or for the same country or in or for different countries,

(a) paragraph 8(1)(b) shall be applied using the earliest filing date of the previously regularly filed applications; and

(b) subsection 8(2) shall be applied using the earliest filing date of the previously regularly filed applications on which the request for priority is based.

Previously regularly filed application deemed never filed

(6) For the purposes of section 8, a previously regularly filed application shall be deemed never to have been filed if

(a) on the filing date of the pending application, more than six months have elapsed since the filing date of the previously regularly filed application;

(b) before the filing date of the pending application, another application for the registration of a design, disclosing the design in the pending application applied to the same finished article,

(i) is filed by the person who filed the previously regularly filed application or by that person’s successor in title or predecessor in title, and

(ii) is filed in or for the country where the previously regularly filed application was filed; and

(c) on the filing date of the other application referred to in paragraph (b) or, if there is more than one such other application, on the earliest of their filing dates, the previously regularly filed application

(i) has been withdrawn, abandoned or refused without having been made available to the public and without leaving any rights outstanding, and

(ii) has not served as a basis for a request for priority in any country, including Canada.

Novel design

8.2 (1) A design in an application for the registration of a design is novel if the same design, or a design not differing substantially from it, applied to a finished article that is the same as or analogous to the finished article in respect of which the design is to be registered,

(a) has not been disclosed, more than 12 months before the priority date of the design in the application, in such a manner that it became available to the public in Canada or elsewhere, by

(i) the person who filed the application,

(ii) that person’s predecessor in title, or

(iii) a person who obtained knowledge of the design in the application, directly or indirectly, from the person who filed the application or their predecessor in title;

(b) has not been disclosed by any other person, before the priority date referred to in paragraph (a), in such a manner that it became available to the public in Canada or elsewhere; and

(c) subject to the regulations, has not been disclosed in an application filed in Canada for the registration of a design whose priority date is before the priority date referred to in paragraph (a).

Application deemed never filed

(2) For the purposes of paragraph (1)(c), an application referred to in that paragraph is deemed never to have been filed if it is withdrawn before the earlier of the date on which it is made available to the public under section 8.3 and the date on which a design in it is registered.

Application and documents made available to public

8.3 (1) The Minister shall make available to the public, on the prescribed date, an application for the registration of a design and all documents in the Minister’s possession relating to the application and to the design’s registration.

Non-disclosure

(2) Except with the approval of the applicant or the registered proprietor, the Minister shall, before the prescribed date referred to in subsection (1), refuse to disclose the application for the registration of the design and any information or document relating to the application or to the design’s registration.

Limitation

(3) The prescribed date referred to in subsection (1) may not be later than the later of the date of registration of the design and 30 months after the filing date of the application for registration or, if a request for priority is made in respect of the application, than the earliest filing date of a previously regularly filed application on which the request for priority is based.

Withdrawal of request

(4) If a request for priority is withdrawn on or before the prescribed date, it shall, for the purposes of subsection (3) and to the extent that it is withdrawn, be deemed never to have been made.

Withdrawn applications

(5) If an application for the registration of a design is withdrawn in accordance with the regulations on or before the prescribed date, the Minister shall not make the application and documents referred to in subsection (1) available to the public and shall refuse to disclose the application and documents, as well as any information relating to them.

Prescribed date

(6) A prescribed date referred to in subsection (4) or (5) is to be no later than the prescribed date referred to in subsection (1).

Exclusive Right

Exclusive right

9. The registration of a design, unless shown to be invalid, gives to the proprietor an exclusive right in relation to the design.

1993, c. 44, s. 163

106. Subsection 10(1) of the Act is replaced by the following:

Duration of exclusive right

10. (1) Subject to subsection (3), the term limited for the duration of an exclusive right

(a) begins on the later of the date of registration of the design and the prescribed date, referred to in subsection 8.3(1), on which the application for the registration of the design is made available to the public; and

(b) ends on the later of the end of 10 years after the date of registration of the design and the end of 15 years after the filing date of the application.

107. The Act is amended by adding the following after section 11:

Restriction on protection

11.1 No protection afforded by this Act shall extend to features applied to a useful article that are dictated solely by a utilitarian function of the article or to any method or principle of manufacture or construction.

1993, c. 15, s. 19

108. Section 13 of the Act and the heading before it are replaced by the following:

Transfers

Design transferable

13. (1) Every design, whether registered or unregistered, is transferable in whole or in part.

Recording of transfer of application

(2) The Minister shall, subject to the regulations, record the transfer of an application for the registration of a design on the request of the applicant or, on receipt of evidence satisfactory to the Minister of the transfer, on the request of a transferee of the application.

Registration of transfer of design

(3) The Minister shall, subject to the regulations, register the transfer of any registered design on the request of the registered proprietor or, on receipt of evidence satisfactory to the Minister of the transfer, on the request of a transferee of the design.

Transfer void

(4) A transfer of a registered design that has not been registered is void against a subsequent transferee if the transfer to the subsequent transferee has been registered.

Removal of recording or registration

(5) The Minister shall remove the recording or registration of the transfer of an application for the registration of a design or the transfer of a registered design on receipt of evidence satisfactory to the Minister that the transfer should not have been recorded or registered.

Limitation

(6) The Minister is not authorized to remove the registration of a transfer of a registered design for the reason only that the transferor had previously transferred the registered design to another person.

1993, c. 15, s. 22

109. Section 21 of the Act and the heading before it are replaced by the following:

Extension of Time

Time limit deemed extended

21. If a time limit specified under this Act ends on a day on which the Commissioner of Patent’s office is closed for business, that time limit shall be deemed to be extended to the next day on which the office is open for business.

110. The Act is amended by adding the following after section 24:

Electronic Form and Means

Electronic form and means

24.1 (1) Subject to the regulations, any document, information or fee that is submitted to the Minister or the Commissioner of Patents under this Act may be submitted in any electronic form, and by any electronic means, that is specified by the Minister or the Commissioner of Patents.

Collection, storage, etc.

(2) Subject to the regulations, the Minister and the Commissioner of Patents may use electronic means to create, collect, receive, store, transfer, distribute, publish, certify or otherwise deal with documents or information.

Definition of “electronic”

(3) In this section, “electronic”, in reference to a form or means, includes optical, magnetic and other similar forms or means.

1993, c. 44, s. 170

111. (1) Paragraphs 25(b) and (c) of the Act are replaced by the following:

(b) respecting the form and contents of applications for the registration of designs, including

(i) the manner of naming finished articles,

(ii) the manner of identifying features of shape, configuration, pattern or ornament of all or part of a finished article, and

(iii) the manner of identifying that an application relates to only some of the features of shape, configuration, pattern or ornament that, in a finished article, appeal to and are judged solely by the eye, or to only some or all of those features of a part of a finished article;

(b.1) respecting the processing and examination of applications for the registration of designs, including the circumstances in which applications shall be deemed to be abandoned and the circumstances in which they shall be reinstated;

(b.2) respecting the circumstances in which paragraph 8.2(1)(c) does not apply in respect of a design that has been disclosed in an application for the registration of a design that was filed in Canada by a person referred to in subparagraph 8.2(1)(a)(i) or (ii);

(b.3) respecting the withdrawal of an application for the registration of a design and, for the purposes of subsections 8.3(4) and (5), prescribing the date, or the manner of determining the date, on or before which a request for priority or an application for the registration of a design shall be withdrawn;

1993, c. 44, s. 170

(2) Paragraph 25(d) of the French version of the Act is replaced by the following:

d) régir le remboursement des droits acquittés sous le régime de la présente loi;

1993, c. 44, s. 170

(3) Paragraphs 25(f) and (g) of the Act are replaced by the following:

(f) respecting requests for priority, including

(i) the period within which priority shall be requested,

(ii) the information and documentation that shall be submitted in support of requests for priority,

(iii) the period within which that information and documentation shall be submitted,

(iv) the withdrawal of requests for priority, and

(v) the correction of requests for priority or of information or documentation submitted in support of them and the effect of corrections on the application of section 8.3;

(g) respecting certificates of registration;

(g.1) respecting the recording of documents relating to a design;

(g.2) respecting the recording or registration of transfers of applications for the registration of a design or transfers of registered designs;

(g.3) respecting the provision, including in electronic form and by electronic means, of documents and information to the Minister or the Commissioner of Patents, including the time at which they are deemed to be received by the Minister or the Commissioner of Patents;

(g.4) respecting the use of electronic means for the purposes of subsection 24.1(2);

(g.5) respecting communications between the Minister or the Commissioner of Patents and any other person;

(g.6) for carrying into effect, despite anything in this Act, the Geneva (1999) Act of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on July 2, 1999, including any amendments and revisions made from time to time to which Canada is a party; and

1993, c. 15, s. 24; 1993, c. 44, ss. 171 and 172; 1994, c. 47, s. 118

112. The heading before section 29 and sections 29 to 30 of the Act are replaced by the following:

TRANSITIONAL PROVISIONS

Definition of “coming-into-force date”

29. In sections 30 to 32, “coming-into-force date” means the day on which subsection 104(2) of the Economic Action Plan 2014 Act, No. 2 comes into force.

Prior applications —filing date

30. An application for the registration of a design whose filing date, determined under this Act as it read immediately before the coming-into-force date, is before the coming-into-force date, shall be dealt with and disposed of in accordance with

(a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 5 and 13; and

(b) sections 5, 13, 21 and 24.1.

Prior application — no filing date

31. An application for the registration of a design that is filed before the coming-into-force date and that does not, on that date, have a filing date, determined under this Act as it read immediately before the coming-into-force date, shall be deemed never to have been filed.

Registered designs

32. Any matter arising on or after the coming-into-force date, in respect of a design registered before that date or a design registered on or after that date on the basis of an application whose filing date, determined under this Act as it read immediately before the coming-into-force date, is before the coming-into-force date, shall be dealt with and disposed of in accordance with

(a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 3 and 13; and

(b) sections 3, 13, 21 and 24.1.

Regulations

33. For greater certainty, a regulation made under section 25 applies to an application referred to in section 30 and to a design referred to in section 32, unless the regulation provides otherwise.

R.S., c. A-1

Consequential Amendment to the Access to Information Act

113. Schedule II to the Access to Information Act is amended by adding, in alphabetical order, a reference to

Industrial Design Act

Loi sur les dessins industriels

and a corresponding reference to “subsections 8.3(2) and (5)”.

R.S., c. P-4

Patent Act

1993, c. 15, s. 26(2)

114. The definitions “filing date” and “legal representatives” in section 2 of the Patent Act are replaced by the following:

“filing date”
« date de dépôt »

“filing date” means the date on which an application for a patent in Canada is filed, as determined in accordance with section 28 or subsection 28.01(2) or 36(4);

“legal representatives”
« représentants légaux »

“legal representatives” includes heirs, executors or administrators of the estate, liquidators of the succession, guardians, curators, tutors, transferees and all other persons claiming through applicants for patents and patentees of inventions;

115. Subsection 4(2) of the Act is replaced by the following:

Duties of Commissioner

(2) The Commissioner shall receive all applications, fees, and documents relating to patents, shall perform and do all acts and things requisite for the granting and issuing of patents, shall have the charge and custody of the books, records and other things belonging to the Patent Office and shall have, for the purposes of this Act, all the powers that are or may be given by the Inquiries Act to a commissioner appointed under Part II of that Act.

116. Subsection 7(1) of the Act is replaced by the following:

Officers and employees of Patent Office not to deal in patents

7. (1) No officer or employee of the Patent Office shall buy, sell, acquire or traffic in any invention, patent or right to a patent, or any interest in an invention, patent or right to a patent, and every purchase, sale, acquisition or transfer of any invention, patent or right to a patent, or any interest in an invention, patent or right to a patent, made by or to any officer or employee is void, or in Quebec, null.

1993, c. 15, s. 27

117. Sections 8.1 and 8.2 of the Act are replaced by the following:

Electronic form and means

8.1 (1) Subject to the regulations, any document, information or fee that is submitted to the Commissioner or the Patent Office under this Act may be submitted in any electronic form, and by any electronic means, that is specified by the Commissioner.

Collection, storage, etc.

(2) Subject to the regulations, the Commissioner and the Patent Office may use electronic means to create, collect, receive, store, transfer, distribute, publish, certify or otherwise deal with documents or information or to seal a patent or other document.

Definition of “electronic”

(3) In this section, “electronic”, in reference to a form or means, includes optical, magnetic and other similar forms or means.

118. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (a):

(a.1) defining “drawing” for the purposes of this Act and respecting the circumstances in which certain drawings may be furnished as part of applications for patents;

(a.2) respecting abstracts in applications for patents, including authorizing the Commissioner to amend or replace abstracts;

(a.3) respecting the consequences of a failure to comply with a notice given under subsection 27(7);

(a.4) respecting the processing and examination of applications for patents;

R.S., c. 33 (3rd Supp.), s. 3

(2) Paragraph 12(1)(c) of the Act is replaced by the following:

(c) respecting the registration of transmissions, disclaimers, judgments or other documents relating to a patent or an application for a patent;

(c.1) respecting the recording of transfers of patents or applications for patents;

(3) Subsection 12(1) of the Act is amended by adding the following after paragraph (i):

(i.1) for carrying into effect the Patent Law Treaty, done at Geneva on June 1, 2000, including any amendments and revisions made from time to time to which Canada is a party;

1993, c. 15, s. 29(2)

(4) Paragraphs 12(1)(j.1) to (j.5) of the Act are replaced by the following:

(j.01) respecting the circumstances in which an applicant, patentee or other person may or must be represented by a patent agent or other person in business before the Patent Office;

(j.1) respecting the submission, including in electronic form and by electronic means, of documents and information to the Commissioner or the Patent Office, including the time at which they are deemed to be received by the Commissioner or the Patent Office;

(j.2) respecting the use of electronic means for the purposes of subsection 8.1(2);

(j.3) respecting the withdrawal of an application for a patent and, for the purposes of subsections 10(4) and (5), prescribing the date, or the manner of determining the date, on or before which a request for priority or an application for a patent is to be withdrawn;

(j.31) respecting additions to the specification and additions of drawings for the purposes of subsection 28.01(1);

(j.4) respecting requests for priority, including

(i) the period within which priority is to be requested,

(ii) the information and documents that are to be submitted in support of requests for priority,

(iii) the period within which that information and those documents are to be submitted,

(iv) the withdrawal of requests for priority, and

(v) the correction of requests for priority or of information or documents submitted in support of them and the effect of corrections on the duration of the confidentiality period referred to in subsection 10(3);

(j.41) respecting the application of subsection 28.4(6);

(j.5) for the purposes of section 36,

(i) defining “one invention”, and

(ii) respecting requirements for divisional applications;

1993, c. 15, s. 29(2)

(5) Paragraph 12(1)(j.8) of the Act is replaced by the following:

(j.71) respecting amendments to the specification or drawings for the purposes of subsection 38.2(1);

(j.72) respecting the replacement of all or part of the text matter of a specification or drawing contained in an application for a patent that is in a language other than English or French with a translation into English or French, for the purposes of paragraph 38.2(3)(b);

(j.73) respecting the conditions set out in subsection 46(5), including the circumstances in which subparagraph 46(5)(a)(ii) and paragraph 46(5)(b) do not apply;

(j.74) establishing a period for the purposes of subsection 55.11(2);

(j.75) establishing a period for the purposes of subsection 55.11(3);

(j.76) respecting the reinstatement of applications for patents under subsection 73(3), including the circumstances in which subparagraph 73(3)(a)(ii) and paragraph 73(3)(b) do not apply;

(j.77) respecting communications between the Commissioner and any other person;

(j.8) authorizing the Commissioner to, during or after the end of the time period fixed under this Act for doing anything, extend that time period, subject to any prescribed terms and conditions, if the Commissioner considers that the circumstances justify the extension;

R.S., c. 33 (3rd Supp.), s. 4

119. Section 15 of the Act is replaced by the following:

15. A register shall be kept in the Patent Office, on which shall be entered the names of all persons and firms that may act as patent agents.

Representation by patent agents

15.1 In the prescribed circumstances, an applicant, patentee or other person shall be represented by a patent agent in all business before the Patent Office.

1993, c. 15, s. 31

120. (1) Subsection 27(2) of the French version of the Act is replaced by the following:

Dépôt de la demande

(2) L’inventeur ou son représentant légal doit, conformément aux règlements, déposer une demande qui comprend une pétition et un mémoire descriptif de l’invention et payer la taxe réglementaire.

1993, c. 15, s. 31

(2) Subsections 27(6) and (7) of the Act are replaced by the following:

Drawings

(5.1) In the case of a machine, or in any other case in which an invention admits of illustration by means of drawings, the applicant shall, as part of the application, furnish drawings of the invention that clearly show all parts of the invention.

Particulars

(5.2) Each drawing is to include references corresponding with the specification. The Commissioner may, as the Commissioner sees fit, require further drawings or dispense with the requirement to furnish any drawing.

Requirements not met

(6) If, on its filing date, an application does not meet the requirements of subsection (2), other than the payment of the application fee, the Commissioner shall, by notice, require the applicant to meet those requirements on or before the prescribed date.

Application fee not paid

(7) If, on the filing date of the application, the application fee is not paid, the Commissioner shall, by notice, require the applicant to pay the application fee and the prescribed late fee on or before the prescribed date.

R.S., c. 33 (3rd Supp.), s. 9; 1993, c. 15, ss. 32 and 33

121. Sections 27.1 and 28 of the Act are replaced by the following:

Reference to previously filed application

27.01 (1) Subject to the prescribed requirements and within the prescribed period, an applicant may submit to the Commissioner a statement to the effect that a reference to a specified previously filed application for a patent is being submitted instead of all or part of the specification contained in or a drawing that is required to be contained in the application. The prescribed period shall not end later than six months after the earliest date on which the Commissioner receives any document or information under subsection 28(1).

Specification or drawing deemed in application

(2) If the applicant submits the statement within the prescribed period and meets the prescribed requirements, the specification or drawing in the previously filed application is deemed to have been contained in the application on the date on which the Commissioner receives the statement.

Maintenance fees

27.1 (1) To maintain an application for a patent in effect, the prescribed fees shall be paid on or before the prescribed dates.

Late fee and notice

(2) If a prescribed fee is not paid on or before the applicable prescribed date,

(a) the prescribed late fee shall be paid, in addition to the prescribed fee; and

(b) the Commissioner shall send a notice to the applicant stating that the application will be deemed to be abandoned if the prescribed fee and late fee are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice.

Prescribed fee deemed paid on prescribed date

(3) If the prescribed fee and late fee are paid before a notice is sent or, if a notice is sent, the prescribed fee and late fee are paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, the prescribed fee shall be deemed to have been paid on the applicable prescribed date.

Patent not invalid

(4) A patent shall not be declared invalid by reason only that the application on the basis of which the patent was granted was not maintained in effect.

Filing date

28. (1) Subject to subsections 28.01(2) and 36(4), the filing date of an application for a patent in Canada is the date on which the Commissioner receives the prescribed documents and information or, if they are received on different dates, the latest of those dates.

Outstanding documents and information

(2) The Commissioner shall notify an applicant whose application does not contain all of the documents and information referred to in subsection (1) of the documents and information that are outstanding and require that the applicant submit them within two months after the date of the notice.

Application deemed never filed

(3) If the Commissioner does not receive the outstanding documents and information within that two-month period, the application is deemed never to have been filed. However, any fees paid in respect of the application shall not be refunded to the applicant.

Addition to specification or addition of drawing to application

28.01 (1) Subject to the regulations, an applicant may, within the prescribed period, add to the specification that is contained in their application or add a drawing to their application for a patent by submitting the addition to the Commissioner along with a statement by the applicant indicating that the addition is being made under this section. The prescribed period shall not end later than six months after the earliest date on which the Commissioner receives any document or information under subsection 28(1).

Filing date

(2) If an applicant submits an addition to the Commissioner under subsection (1) and the addition is not withdrawn within the prescribed period, the filing date of the application is the later of the date on which the Commissioner receives the addition and the filing date referred to in subsection 28(1), unless

(a) the applicant has, on the earliest date on which the Commissioner receives any document or information under subsection 28(1), made a request for priority in respect of the application under section 28.4;

(b) the addition is completely contained in a previously regularly filed application on which the request for priority is based;

(c) the applicant requests, in accordance with the regulations, that the filing date be the filing date referred to in subsection 28(1); and

(d) the applicant complies with any prescribed requirements.

Addition deemed in application

(3) In the circumstances set out in paragraphs (2)(a) to (d), the addition is deemed to have been contained in the application on its filing date for the purposes of subsections 38.2(2) and (3).

1993, c. 15, s. 33

122. Paragraph 28.1(1)(b) of the French version of the Act is replaced by the following:

b) à cette date, il s’est écoulé, depuis la date de dépôt de la demande déposée antérieurement, au plus douze mois;

1993, c. 15, s. 33

123. Paragraph 28.2(1)(a) of the Act is replaced by the following:

(a) before the one-year period immediately preceding the filing date or, if the claim date is before that period, before the claim date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere;

1993, c. 15, s. 33

124. Paragraph 28.3(a) of the Act is replaced by the following:

(a) information disclosed before the one-year period immediately preceding the filing date or, if the claim date is before that period, before the claim date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant in such a manner that the information became available to the public in Canada or elsewhere; and

2001, c. 34, s. 63

125. (1) Subsection 28.4(2) of the Act is replaced by the following:

Requirements for request

(2) The request for priority shall be made in accordance with the regulations and the applicant shall submit to the Commissioner the filing date, the name of the country or office of filing and the number of each previously regularly filed application on which the request is based.

Request deemed never filed

(2.1) A request for priority is deemed never to have been made if the request is not made in accordance with the regulations or if the applicant does not submit the information, other than the number of each previously regularly filed application, required under subsection (2).

1993, c. 15, s. 33

(2) Subsection 28.4(3) of the French version of the Act is replaced by the following:

Retrait de la demande

(3) Le demandeur peut, selon les modalités réglementaires, retirer la demande de priorité à l’égard de la demande déposée antérieurement; si elle est fondée sur plusieurs demandes, il peut la retirer à l’égard de toutes celles-ci ou d’une ou de plusieurs d’entre elles.

1993, c. 15, s. 33

(3) The portion of paragraph 28.4(5)(a) of the Act before subparagraph (i) is replaced by the following:

(a) on the filing date of one of the following applications, as the case may be, more than 12 months have elapsed since the filing date of the previously regularly filed application:

1993, c. 15, s. 33

(4) The portion of paragraph 28.4(5)(b) of the English version of the Act before subparagraph (i) is replaced by the following:

(b) before the filing date of the application referred to in one of subparagraphs (a)(i) to (iv), as the case may be, another application

(5) Section 28.4 of the Act is amended by adding the following after subsection (5):

Filing date deemed to be within 12 months

(6) Subject to the regulations, for the purposes of paragraph 28.1(1)(b) and subparagraphs 28.2(1)(d)(iii) and 28.4(5)(a)(i) and (ii), the filing date of the pending application or the co-pending application, as the case may be, shall be deemed to be within 12 months after the filing date of the previously regularly filed application if

(a) the filing date of the pending application or the co-pending application, as the case may be, is more than 12 months after the filing date of the previously regularly filed application but within two months after the end of those 12 months; and

(b) the applicant, within the prescribed time,

(i) makes a request to the Commissioner for this subsection to apply,

(ii) states, in the request, that the failure to file the pending application or the co-pending application, as the case may be, within 12 months after the filing date of the previously regularly filed application was unintentional, and

(iii) complies with any prescribed requirements.

Powers of the Federal Court

(7) If subsection (6) applies, the Federal Court may, by order, declare that subsection never to have produced its effects if the Federal Court determines that the failure referred to in subparagraph (6)(b)(ii) was intentional.

1993, c. 15, s. 34

126. Section 29 of the Act is repealed.

127. Paragraph 31(2)(a) of the Act is replaced by the following:

(a) an applicant has agreed in writing to transfer a patent, when granted, to another person or to a joint applicant and refuses to proceed with the application, or

1993, c. 15, s. 38

128. Subsection 35(2) of the Act is replaced by the following:

Prescribed time

(2) The request shall be made within the prescribed time and the prescribed fee shall be paid within that time.

Late fee and notice

(3) If the request is not made or the prescribed fee is not paid within the prescribed time,

(a) the prescribed late fee shall be paid, in addition to the prescribed fee; and

(b) the Commissioner shall send a notice to the applicant stating that the application will be deemed to be abandoned if the request is not made and the prescribed fee and late fee are not paid before the end of two months after the date of the notice.

Request deemed made and prescribed fee deemed paid within prescribed time

(4) If the request is made and the prescribed fee and late fee are paid before a notice is sent or, if a notice has been sent, the request is made and the prescribed fee and late fee are paid before the end of two months after the date of the notice, the request shall be deemed to have been made and the prescribed fee shall be deemed to have been paid within the prescribed time.

Required examination

(5) The Commissioner may by a notice sent to the applicant, require that the request be made and the prescribed fee be paid within the prescribed time. However, the Commissioner is not authorized to send the notice if the prescribed time would end after the prescribed time referred to in subsection (2).

Non-application

(6) If a notice is sent under subsection (5), subsections (2) to (4) do not apply.

1993, c. 15, s. 39

129. Subsection 36(3) of the Act is replaced by the following:

Original application abandoned

(3) If an original application mentioned in subsection (2) or (2.1) is deemed to be abandoned and is not reinstated, the time for filing a divisional application ends on the later of the day on which the original application is deemed to be abandoned and the end of the prescribed time referred to in subsection 73(3).

R.S., c. 33 (3rd Supp.), s. 13; 1993, c. 15, s. 40

130. The heading before section 37 and sections 37 and 38 of the Act are replaced by the following:

BIOLOGICAL MATERIALS

1993, c. 15, s. 41

131. (1) Subsection 38.2(1) of the French version of the Act is replaced by the following:

Modification du mémoire descriptif et des dessins

38.2 (1) Sous réserve des paragraphes (2) et (3) et des règlements, les dessins et le mémoire descriptif qui sont compris dans la demande de brevet peuvent être modifiés avant la délivrance du brevet.

1993, c. 15, s. 41

(2) Subsections 38.2(2) and (3) of the Act are replaced by the following:

Restriction

(2) The specification and drawings may not be amended to add matter not reasonably to be inferred from the specification or drawings contained in the application on its filing date.

Language other than English or French

(3) However, if all or part of the text matter of the specification or drawings contained in the application on its filing date is in a language other than English or French, the specification and drawings may not be amended to add matter not reasonably to be inferred from both

(a) the specification or drawings contained in the application on its filing date, and

(b) the specification or drawings contained in the application immediately after the text matter is replaced by an English or French translation, in accordance with the regulations.

Non-application of subsections (2) and (3)

(4) Subsections (2) and (3) do not apply if it is admitted in the specification that the matter is prior art with respect to the application.

R.S., c. 33 (3rd Supp.), s. 16; 1993, c. 15, s. 43

132. Section 46 of the Act is replaced by the following:

Maintenance fees

46. (1) To maintain the rights accorded by a patent issued under this Act in effect, the prescribed fees shall be paid on or before the prescribed dates.

Late fee and notice

(2) If a prescribed fee is not paid on or before the applicable prescribed date,

(a) the prescribed late fee shall be paid, in addition to the prescribed fee; and

(b) the Commissioner shall send a notice to the patentee stating that the term limited for the duration of the patent will be deemed to have expired if the prescribed fee and late fee are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice.

Prescribed fee deemed paid on prescribed date

Term limited deemed expired on prescribed date

(4) If the prescribed fee and late fee are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, the term limited for the duration of the patent shall be deemed to have expired on the applicable prescribed date.

Subsection (4) deemed never to have produced its effects

(5) Subject to the regulations, if the term limited for the duration of a patent is deemed to have expired under subsection (4), that subsection is deemed never to have produced its effects if

(a) the patentee, within the prescribed time,

(i) makes a request to the Commissioner for the term limited for the duration of the patent to never have been deemed to have expired,

(ii) states, in the request, the reasons for the failure to pay the prescribed fee and late fee before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice, and

(iii) pays the prescribed fee, the late fee and any additional prescribed fee; and

(b) the Commissioner determines that the failure occurred in spite of the due care required by the circumstances having been taken and informs the patentee of this determination.

Powers of the Federal Court

(6) If subsection (5) applies, the Federal Court may, by order, declare the term limited for the duration of the patent to have expired on the applicable prescribed date if the Federal Court determines either

(a) that the statement of the reasons referred to in subparagraph (5)(a)(ii) contains a material allegation that is untrue, or

(b) that, if paragraph (5)(b) applies, the failure referred to in subparagraph (5)(a)(ii) did not occur in spite of the due care required by the circumstances having been taken.

R.S., c. 33 (3rd Supp.), s. 17

133. (1) The portion of subsection 48(1) of the Act after paragraph (b) is replaced by the following:

the patentee may, on payment of a prescribed fee, make a disclaimer of the parts that the patentee does not claim to hold by virtue of the patent or a transfer of the patent.

(2) Subsection 48(5) of the Act is repealed.

R.S., c. 33 (3rd Supp.), ss. 19 and 20

134. The heading before section 49 and sections 49 to 51 of the Act are replaced by the following:

TRANSFERS

Patent, application and right or interest in invention

49. (1) A patent, an application for a patent, and the right or interest in an invention are transferable, in whole or in part.

Recording of transfer of application

(2) The Commissioner shall, subject to the regulations, record the transfer of an application for a patent on the request of the applicant or, upon receipt of evidence satisfactory to the Commissioner of the transfer, on the request of a transferee of the application.

Recording of transfer of patent

(3) The Commissioner shall, subject to the regulations, record the transfer of a patent on the request of the patentee or, upon receipt of evidence satisfactory to the Commissioner of the transfer, on the request of a transferee of the patent.

Transfer void

(4) A transfer of a patent that has not been recorded is void against a subsequent transferee if the transfer to the subsequent transferee has been recorded.

Removal of recording

(5) The Commissioner shall remove the recording of the transfer of an application for a patent or the transfer of a patent on receipt of evidence satisfactory to the Commissioner that the transfer should not have been recorded.

Limitation

(6) The Commissioner is not authorized to remove the recording of a transfer of a patent for the reason only that the transferor had previously transferred the patent to another person.

1993, c. 15, s. 48

135. Subsection 55(2) of the Act is replaced by the following:

Liability damage before patent is granted

(2) A person is liable to pay reasonable compensation to a patentee and to all persons claiming under the patentee for any damage sustained by the patentee or by any of those persons by reason of any act on the part of that person, after the specification contained in the application for the patent became open to public inspection, in English or French, under section 10 and before the grant of the patent, that would have constituted an infringement of the patent if the patent had been granted on the day the specification became open to public inspection, in English or French, under that section.

136. The Act is amended by adding the following after section 55.1:

Exception —third party rights

55.11 (1) This section applies only in respect of the following patents:

(a) a patent that was granted on the basis of an application

(i) in respect of which the prescribed fee referred to in subsection 27.1(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 27.1(3),

(ii) in respect of which a request referred to in subsection 35(2) was not made and the prescribed fee referred to in that subsection was not paid within the prescribed time referred to in that subsection, without taking into account subsection 35(4), or

(iii) that was deemed abandoned under paragraph 73(1)(a), (b), (e) or (f) or subsection 73(2);

(b) a patent that was granted on the basis of a divisional application that

(i) results, under subsection 36(2) or (2.1), from the division of an original application that is an application referred to in this paragraph or paragraph (a), and

(ii) was filed after the beginning of the period referred to in subsection (2) or, if it is earlier, the period referred to in subsection (3), that applies to the patent granted on the basis of the original application or that would apply to that patent if it were granted; and

(c) a patent in respect of which the prescribed fee referred to in subsection 46(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 46(3).

Act committed during period

(2) No action for infringement of a patent lies against a person in respect of an act that would otherwise constitute an infringement of the patent if that act is committed in good faith by the person during a period that is estab-lished by regulations made under paragraph 12(1)(j.74).

Act committed after period or transfer

(3) If, during a period established by regulations made under paragraph 12(1)(j.75), a person, in good faith, committed an act that would otherwise constitute an infringement of a patent or made serious and effective preparations to commit that act,

(a) no action for infringement of the patent lies against the person in respect of that act if the person commits it after that period but before the person transfers the business or the part of the business in the course of which the act was committed or the preparations were made; and

(b) no action for infringement of the patent lies, if the business or the part of the business in the course of which the act was committed or the preparations were made is transferred, against the transferee in respect of that act if the transferee commits it after the transfer but before the transferee subsequently transfers the business or the part of the business.

Subsequent acquisition

(4) No action for infringement of a patent lies against a person in respect of the use or sale of a specific article, machine, manufacture or composition of matter if the person acquired the specific article, machine, manufacture or composition of matter, directly or indirectly, from a person who made it and against whom no action for infringement of the patent lies under subsection (2) or (3) for making that specific article, machine, manufacture or composition of matter.

1993, c. 15, s. 52

137. (1) Subsection 73(1) of the Act is replaced by the following:

Deemed abandonment of applications

73. (1) An application for a patent in Canada shall be deemed to be abandoned if

(a) the applicant does not reply in good faith, within the prescribed time, to any requisition made by an examiner in connection with an examination;

(b) the applicant does not comply with a notice given under subsection 27(6);

(c) the prescribed fee and late fee referred to in a notice sent under paragraph 27.1(2)(b) are not paid before the later of the end of six months after the applicable prescribed date and the end of two months after the date of the notice;

(d) the request referred to in a notice sent under paragraph 35(3)(b) is not made and the prescribed fee and late fee referred to in that notice are not paid before the end of two months after the date of the notice;

(e) the request referred to in a notice sent under subsection 35(5) is not made and the prescribed fee referred to in that notice is not paid within the prescribed time; or

(f) the applicant does not pay the prescribed fees stated to be payable in a notice of allowance of patent within six months after the date of the notice.

1993, c. 15, s. 52

(2) Subsection 73(2) of the French version of the Act is replaced by the following:

Abandon

(2) Elle est aussi réputée abandonnée dans les circonstances réglementaires.

1993, c. 15, s. 52

(3) Subsection 73(3) of the Act is replaced by the following:

Reinstatement

(3) Subject to the regulations, an application that is deemed to be abandoned is reinstated if

(a) the applicant, within the prescribed time,

(i) makes a request for reinstatement to the Commissioner,

(ii) states, in the request, the reasons for the failure to take the action that should have been taken in order to avoid the abandonment,

(iii) takes the action that should have been taken in order to avoid the abandonment, and

(iv) pays the prescribed fee; and

(b) the Commissioner determines that the failure occurred in spite of the due care required by the circumstances having been taken and informs the applicant of this determination.

Powers of the Federal Court

(3.1) The Federal Court may, by order, declare an application that is reinstated under subsection (3) to never have been reinstated if the Federal Court determines either

(a) that the statement of the reasons referred to in subparagraph (3)(a)(ii) contains a material allegation that is untrue, or

(b) that, if paragraph (3)(b) applies, the failure referred to in subparagraph (3)(a)(ii) did not occur in spite of the due care required by the circumstances having been taken.

138. The Act is amended by adding the following after section 73:

Patent not invalid

73.1 (1) A patent shall not be declared invalid by reason only that the application on the basis of which the patent was granted was deemed to be abandoned and was not reinstated.

Exception

(2) Subsection (1) does not apply if the Federal Court makes an order under subsection 73(3.1) in respect of the application on the basis of which the patent was granted.

2001, c. 10, s. 3

139. Sections 78.1 and 78.2 of the Act are replaced by the following:

Definition of “coming-into-force date”

78.1 (1) In sections 78.2, 78.21 and 78.5 to 78.56, “coming-into-force date” means the day on which section 121 of the Economic Action Plan 2014 Act, No. 2 comes into force.

Definition of “filing date”

(2) In sections 78.21, 78.22, 78.4, 78.5, 78.53 and 78.54, “filing date” means the date on which an application for a patent in Canada is filed, as determined in accordance with section 78.2.

Filing date

78.2 The filing date of an application for a patent is

(a) with respect to an original application,

(i) if all of the following elements were received by the Commissioner before October 1, 1989, the date on which they were received or, if they were received on different dates, the latest of those different dates:

(A) a statement that the granting of a patent is sought, executed by the applicant or by a patent agent on the applicant’s behalf,

(B) a specification, including claims,

(D) an abstract of the part of the specification other than the claims,

(E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received,

(ii) if subparagraph (i) does not apply, one or more of the following elements were received by the Commissioner on or after October 1, 1989 and all of the following elements were received by the Commissioner before October 1, 1996, the date on which they were received or, if they were received on different dates, the latest of those different dates:

(A) a petition executed by the applicant or by a patent agent on the applicant’s behalf,

(B) a specification, including claims,

(D) an abstract of the part of the specification other than the claims,

(E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received,

(iii) if subparagraphs (i) and (ii) do not apply, one or more of the following elements were received by the Commissioner on or after October 1, 1996 and all of the following elements were received by the Commissioner before June 2, 2007, the date on which they were received or, if they were received on different dates, the latest of those different dates:

(A) an indication, in English or French, that the granting of a Canadian patent is sought,

(B) the applicant’s name,

(D) a document, in English or French, that on its face appears to describe an invention,

(E) the fee set out in item 1 of Schedule II to the Patent Rules as that item read on the day on which the fee was received, and

(iv) if subparagraphs (i) to (iii) do not apply, one or more of the following elements were received by the Commissioner on or after June 2, 2007 and all of the following elements were received by the Commissioner before the coming-into-force date, the date on which they were received or, if they were received on different dates, the latest of those different dates:

(A) an indication, in English or French, that the granting of a Canadian patent is sought,

(B) the applicant’s name,

(D) a document, in English or French, that on its face appears to describe an invention,

(E) either a small entity declaration, in accordance with section 3.01 of the Patent Rules as it read on the day on which the declaration was received, and the small entity fee set out in item 1 of Schedule II to those Rules as that item read on the day on which that fee was received or the standard fee set out in item 1 of that Schedule, as that item read on the day on which that standard fee was received; or

(b) with respect to a divisional application, the filing date of the original application from which the divisional application results, determined in accordance with this section.

Applications —no filing date

78.21 An application for a patent that is filed before the coming-into-force date and that does not have a filing date on the coming-into-force date shall be deemed never to have been filed.

Applications —filing date before October 1, 1989

78.22 An application for a patent whose filing date is before October 1, 1989 shall be dealt with and disposed of in accordance with

(a) the provisions of this Act as they read immediately before October 1, 1989, other than the definition “legal representatives” in section 2, subsections 4(2) and 7(1), sections 15 and 29, paragraph 31(2)(a) and sections 49 to 51; and

(b) the definition “legal representatives” in section 2, subsections 4(2) and 7(1), sections 8.1, 15 and 15.1, paragraph 31(2)(a) and sections 38.1, 49 and 78.2.

2001, c. 10, s. 4

140. Sections 78.4 and 78.5 of the Act are replaced by the following:

Applications —filing date October 1, 1989 to before October 1, 1996

78.4 Subject to sections 78.51 and 78.52, an application for a patent whose filing date is on or after October 1, 1989 but before October 1, 1996 shall be dealt with and disposed of in accordance with

(a) the provisions of this Act, other than the definition “filing date” in section 2, subsection 27(7), sections 27.01, 28 and 28.01 and subsection 28.4(6); and

(b) subsection 27(2) as it read immediately before October 1, 1996.

Applications —filing date October 1, 1996 to before coming-into-force date

78.5 Subject to sections 78.51 and 78.52, an application for a patent whose filing date is on or after October 1, 1996 but before the coming-into-force date shall be dealt with and disposed of in accordance with the provisions of this Act, other than the definition “filing date” in section 2, subsection 27(7), sections 27.01, 28 and 28.01 and subsection 28.4(6).

Abandonment before coming-into-force date

78.51 If an application for a patent was deemed to be abandoned under section 73 as it read immediately before the coming-into-force date, that section 73 applies in respect of that abandonment.

Abandonment— requisition or notice before coming-into-force date

78.52 (1) If, on or after the coming-into-force date, an applicant fails to do any act described in paragraph 73(1)(a), (b), (e) or (f), as those paragraphs read immediately before that date, in respect of a requisition made or notice given, as the case may be, before that date, section 73 as it read immediately before that date applies in respect of any abandonment resulting from the failure.

Abandonment — section 97 of the Patent Rules

(2) If, on or after the coming-into-force date, an applicant fails to do any act described in section 97 of the Patent Rules, as that section read immediately before that date, in respect of a requisition of the Commissioner that was given before that date, section 73 as it read immediately before that date applies in respect of any abandonment resulting from the failure.

Patents — filing date before October 1, 1989

78.53 Subject to subsection 78.55(2), any matter arising on or after the coming-into-force date, in respect of a patent granted on the basis of an application whose filing date is before October 1, 1989, shall be dealt with and disposed of in accordance with

(a) the provisions of this Act, other than the definitions “claim date”, “filing date” and “request for priority” in section 2, sections 10, 27 to 28.4, 34.1 to 36, 38.2 and 55 and paragraphs 55.11(1)(a) and (b); and

(b) sections 10 and 55 and subsections 61(1) and (3), as they read immediately before October 1, 1989.

Patents — filing date October 1, 1989 to before coming-into-force date

78.54 Subject to subsection 78.55(1) and section 78.56, any matter arising on or after the coming-into-force date in respect of a patent granted on the basis of an application whose filing date is on or after October 1, 1989 but before the coming-into-force date shall be dealt with and disposed of in accordance with the provisions of this Act, other than the definition “filing date” in section 2 and section 28.

Application of section 46 — item 31 of Schedule II to Patent Rules

78.55 (1) If the time, not including a period of grace, set out in item 31 of Schedule II to the Patent Rules to pay the applicable fee to maintain the rights accorded by a patent in effect ends before the coming-into-force date, section 46 as it read immediately before the coming-into-force date applies in respect of that fee.

Application of section 46 — item 32 of Schedule II to Patent Rules

(2) If the time, not including a period of grace, set out in item 32 of Schedule II to the Patent Rules to pay the applicable fee to maintain the rights accorded by a patent in effect ends before the coming-into-force date, section 46 as it read immediately before the coming-into-force date applies in respect of that fee.

Non-application of subsection 27.1(4) and section 73.1

78.56 Subsection 27.1(4) and section 73.1 do not apply to a patent that was granted before the coming-into-force date or to a reissued patent if the original patent was granted before that date.

Reissued patents

78.57 For greater certainty, for the purposes of sections 78.53 and 78.54, a reissued patent is considered to be issued on the basis of the original application.

Regulations

78.58 For greater certainty, a regulation made under subsection 12(1) applies to an application for a patent referred to in section 78.22, unless the regulation provides otherwise.

2005, c. 18, s. 2

141. Subsection 78.6(5) of the Act is replaced by the following:

Application

(5) For greater certainty, this section also applies to applications for patents mentioned in section 78.22.