Patent Decision: Lapse of Rights

2233846_20070213_representativedrawing_page1_scale25_rotate01.gifDBC Marine Safety Systems Ltd. invented an inflatable reversible life raft and applied for a patent (No. 2,233,846).  During the course of any patent application, it is common for the Patent Office to send an examiner’s letter to the applicant, requesting further information or amendments to comply with the Patent Act. In its reply to one such letter, DBC’s patent agent responded to one of the requests, but overlooked the other request.  The Patent Office and Patent Act are both clear that if a response is completely silent in respect of any of the requests in an examiner’s report, then the application will be deemed to be abandoned. 

The initial 6-month time period lapsed, and the notice of abandonment was issued after the 12-month reinstatement period had expired. In other words, the patent agent made a mistake by overlooking the one request, and the Patent Office failed to follow their normal practice of providing a “courtesy” notice of impending abandonment. The result was that the application was treated as abandoned and could not be reinstated.  In the recent Federal Court of Appeal decision in DBC Marine Safety Systems Ltd. v. Canada (Commissioner of Patents) (Trial Decision here ), the Federal Court of Appeal dismissed the appeal and upheld the decision of the Patent Office to treat the application as having been abandoned.   

Calgary – 10:30 MST


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