Area of Law: Intellectual Property
Answer # 299
How long does Patent protection last?Region: Ontario Answer # 299
If your patent application is accepted and you obtain a patent in Canada, you have the right to exclude others from making, using, or selling your invention for a maximum of 20 years from the day you filed your application in Canada.
To maintain your patent in force over this 20-year period, you must pay annual maintenance fees. If you do not pay the fee within the payment deadline, your patent will lapse, which means that other people will be allowed to use the invention without your permission. If the required fee is not paid before the payment deadline and the patent lapses, it can be revived within 12 months after giving a written request for reinstatement together with the payment of the maintenance and late payment fees.
Maintenance fees are government fees and are subject to change. There are, however, two categories of fees, one for small entities and one for all other patent holders. Those who are considered a small entity pay a reduced fee. A patent holder is considered to be a small entity if it employs 50 or fewer employees or is a university. Entities are not considered small entities if they:
- are controlled by another entity, which is not a university, that employees more than 50 employees, or
- have transferred or licensed an obligation (other than a contingent, necessary, obligation), to transfer or license any right in the invention to an entity that is not a university, and which employs more than 50 employees.
New Patents Act – Notice of payment due
On December 16, 2014, Bill C-43 received Royal Assent, amending the Patent Act to make it consistent with international Patent law. The new Act is not yet in force.
Currently, no notice is sent to an applicant regarding payment due for maintenance fees. Under the proposed changes:
- the Commissioner of Patents must notify an applicant of a missed maintenance fee due date, at which time the applicant will have a specific amount of time to pay the applicable fee and a late fee to avoid the application becoming abandoned. The new due date cannot be earlier than 18 months from the prescribed due date for the payment of a maintenance fee; and
- any person (not just the agent appointed to act as representative, if one has been appointed) can pay the maintenance fees associated with the patent application.
For more information and current government fees, refer to the Canadian Intellectual Property Office.
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