Date: 20071105
Docket: T-1667-06
Citation: 2007 FC 1142
Ottawa, Ontario, November
5, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
DBC
MARINE SAFETY SYSTEMS LTD
Applicant
and
THE COMMISSIONER OF PATENTS
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial
review of a notice issued by the office of the Commissioner of Patents
declaring a patent application abandoned for failure to respond to an examiner’s
requisition by the prescribed deadline. The notice was issued after the reinstatement
period had expired. The applicant’s agent erred in overlooking the requisition.
The Patent Office erred in failing to follow their normal practice of providing
a timely “courtesy” notice. Nonetheless, for the reasons that follow, I
conclude that the application was abandoned by operation of law and that the
Court is unable to provide a remedy.
BACKGROUND:
[2]
The relevant provisions of the
Patent Act, ( R.S., 1985, c. P-4 ) (“the Act”) and the Patent
Rules (SOR/96-423) (“the Rules”) are attached as Schedule “A” for
ease of reference.
[3]
The applicant filed Canadian
Patent Application No. 2,233,846 on April 2, 1998 claiming priority from a U.S.
application. The matter was placed in the application queue and eventually
assigned to a Patent Examiner who on August 10, 2004, sent a letter (called
an “office action”) to the applicant requiring further information. That office
action highlighted a number of perceived defects in the application and contained
the following passage:
You are hereby notified of:
-
A requisition by the Examiner in accordance with Subsection 30(2)
of the Patent Rules;
-
A requisition by the Examiner in accordance with Section 29 of
the Patent Rules
In order to avoid multiple abandonments
under Paragraph 73(1)(a) of the Patent Act, a written reply to each
requisition must be received within 6 months after the above
date. (emphasis in original)
[4]
The
requisition in relation to subsection 30 (2) called for amendments to the application
in order to comply with the act and the rules, or, arguments as to why the
application did comply.
[5]
Under
section 29 the patent examiner has the discretion to request the applicant to
provide particulars of the prosecution of any foreign patent application for
the same invention. The requisition in this instance called for the "identification
of any prior art cited in respect of the United States and United Kingdom
applications describing the same invention on behalf of the applicant, or on
behalf of any other person claiming under an inventor named in the present
application" or, if such particulars were not available to the applicant,
the reason why was to be stated.
[6]
The
applicant had no connection to the UK application to which
the requisition referred. That document had been referenced in another pending
Canadian patent application for a similar invention. A statement to the effect that
the applicant did not have the information would have been sufficient to
dispose of that aspect of the requisition. The requisitioned information
respecting the US application was either already before the
examiner in the application materials or was readily available to him through
online access to the US patent office.
[7]
The
six month limitation
period for replies to requisitions is set out in paragraph 73 (1)(a) of the
Act. That paragraph does not refer to “multiple abandonments” but states that
an application shall be deemed to be abandoned for failure to reply “in good
faith” to “any requisition” within the prescribed period.
[8]
The
use of the term "multiple abandonments" stems from a change of
practice adopted by the Patent Office in 2003 and conveyed to the profession by
means of a practice notice dated September 2, 2003 and an updated notice issued
on April 2, 2004. Through these notices, the office
advised that responses which were
completely silent in respect of any of the requisitions in an examiner's report
would not be considered as replying in good faith to that particular
requisition and that the application would be deemed to be abandoned.
[9]
From
correspondence exchanged between the Commissioner and the President of the
Intellectual Property Institute of Canada in 2004, it appears that this change
was prompted by concerns about the failure of applicants, in general, to
adequately respond to s. 29 requisitions.
[10]
On
February 7, 2005, three days before the deadline to reply to the requisitions
in the August 2004 examiner's report, the applicant’s patent agent filed a
response to the requisition that was issued in accordance with subsection 30(2)
of the Rules. He failed to respond to the second requisition respecting the s.
29 information and gave no reason as to why the particulars required were not
provided. This was simply an oversight, as the agent acknowledges in an
affidavit. However, the effect was to invoke a deemed abandonment pursuant to
s.73(1)(a) of the Act and to start the clock ticking on the twelve-month period
for reinstatement prescribed in the Rules. That period expired on February 10,
2006.
[11]
The
annual maintenance fee for the application was submitted and accepted in July
2005. The applicant was not informed after the payment was made that the
application was considered to have been abandoned at that time.
[12]
On
April 10, 2006, unaware of the deemed abandonment and the subsequent expiration
of the reinstatement period two months previously, the applicant’s agent wrote
to the Commissioner
asking when the application would be
examined. In response, the Patent Office returned a copy of the agent’s letter
bearing a stamp which indicated that there was an outstanding action on the
application and that notice of abandonment had been mailed on February 10, 2005.
That stamp bears the date of May 9, 2006. There is no evidence that such a
notice was in fact mailed.
[13]
It
is not disputed by the respondents that no notice was provided to the applicant
or to its agent that the application was deemed to have been abandoned. The evidence
is that when an applicant has responded to a portion of a Patent Office action
but has failed to respond to another part, the normal practice in the office is
that the examiner would contact the applicant in a timely fashion to provide an
opportunity to correct the defect without any loss of rights to the applicant.
Where a notice of abandonment was issued, ample time would be provided to take
steps to reinstate the application.
[14]
This
is supported by extracts from the Manual of Patent Office Procedure, revised in
December 2003, which states, in section 19.07.03, that the applicant would be
notified by a courtesy communication, or, if the due date had already passed,
by a notice of abandonment when the response to a requisition under s. 29 was
found to be incomplete.
[15]
In
this instance, the notice of abandonment, containing a paragraph describing the
steps to be taken to reinstate the application, was issued on May 8, 2006, far
too late for the applicant to take such action. Upon receipt, the applicant appealed
to the Commissioner of Patents, submitting the missing documentation and filing
the appropriate fee. The response on behalf of the Commissioner, dated August
15, 2006, concludes that the Commissioner has no discretionary power to
reinstate an
abandoned application after the
reinstatement period specified in the Rules. The letter states that when a
response to a requisition is considered incomplete the applicant will, when
there is time left to respond before the due date, be notified by a courtesy
communication requesting information or reasons why a full response was not
received. If the due date for responding has already passed, a notice of
abandonment will be sent allowing for reinstatement action to be taken. In this
case, the letter acknowledges that a notice of abandonment was not sent prior
to the expiry of the reinstatement period. Citing section 20.07 of the Manual
of Patent Office Procedure, the letter states that the practice of notification
was merely a courtesy and the Patent Office accepts no responsibility for
failure to send a notice in a particular situation.
[16]
This
application for judicial review was filed on September 14, 2006 seeking that
the decision made by the Commissioner in the letter of August 15, 2006 be
quashed, reinstatement of the application and referral back to the examiner for
a determination on the merits.
[17]
While
it is clear that in this instance the Patent Office neglected to follow their
customary practice to notify applicants that an application was in default, upon
the evidence submitted I find that the Commissioner made no decision and took
no action to determine that the application was abandoned or to deny
reinstatement of the application within the prescribed time.
ISSUES:
[18]
In
its written submissions, the applicant raised several arguments respecting
alleged errors of law made by the Commissioner in her interpretation of the Act
and the Rules. These arguments are
predicated upon the assumption that the
Commissioner made a reviewable discretionary decision that resulted in the
abandonment of the application and denial of the opportunity to seek
reinstatement. I will deal with these interpretation questions briefly in
addressing the key issues.
[19]
In
oral argument counsel for the applicant submitted that the central issue was
denial of procedural fairness.
[20]
The
respondents stress that they have no interest in whether this particular patent
application is reinstated or not. In their submission, the key issue is whether
the Court has jurisdiction to review a non-discretionary outcome mandated by
operation of law.
ANALYSIS:
Standard of Review
[21]
The
question of what standard of review to apply does not arise on the
jurisdictional issue. The Court must make its own determination of whether it
has the competence to review the actions taken by the Commissioner. Questions of procedural fairness are reviewed against a standard of
correctness: Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 100.
Jurisdiction;
[22]
The
respondents maintain the position previously advanced by Ministers in Pfizer
Inc. Canada (Commissioner of Patents) (1999) 1 C.P.R. (4th)
200 rev’d on other grounds (2000), 9 C.P.R. (4th) 13 (F.C.A.): Hoffman-LaRoche
AG v. Canada
(Commissioner of Patents) 2003 FC 1381, aff’d 2005 FCA 399 and Eiba
v. Canada (Attorney
General) 2004
FC 250. The jurisdiction of the Federal Court on an application for judicial
review of the actions of federal administrative bodies is limited to that found
in subsection 18.1(3) of the Federal Courts Act, R.S., 1985, c. F-7.
That provision permits the Court to provide a remedy with respect to any
“decision, order, act or proceeding”. The
respondents submit that as the deemed abandonment of the patent application was
due to the operation of section 73 of the Act, there is no reviewable
decision or action on the facts of this case. The Commissioner’s correspondence
notifying the applicant of that fact is purely an administrative act, not
subject to review.
[23]
The
applicant acknowledges that, in this instance, there was no formal decision of
the Commissioner to refuse the patent application for registration. However,
the applicant submits, the Court has the
jurisdiction to review the actions of federal bodies if the exercise of administrative
action stems from statutory authority and affects the rights and interests of
others: Nunavut Tunngavik Inc. v. Canada (Attorney General), 2004 FC 85, (2004) 245 F.T.R. 42 at paragraphs 8-9.
The Commissioner’s letter of August 15, 2006 refusing to reinstate the application
should be considered as falling within that category, in the applicant’s
submission.
[24]
In Nunavut
Tunngavik, at paragraph 8, Justice
James O’Reilly found that the Court’s role in judicial review “extends
beyond formal decisions. It includes review of "a diverse range of
administrative action that does not amount to a 'decision or order', such as
subordinate legislation, reports or recommendations made pursuant to statutory
powers, policy statements, guidelines and operating manuals, or any of the
myriad forms that administrative action may take in the delivery by a statutory
agency of a public programme.” However, in that case the agency in question, the Privy Council office, had no authority to act
as the applicants sought to have it do. Justice O’Reilly found that the refusal
to take the action requested was not reviewable as it did not flow from any
statutory power.
[25]
In Pfizer, above, the
applicant had been sent an erroneous notice of reinstatement with respect to a
patent application deemed to have been abandoned for non-payment of fees.
This was subsequently corrected in further correspondence. Justice Cullen
concluded that as the correspondence was issued by a federal body pursuant to a
statutory power and clearly affected the rights and interests of the applicant,
the letters constituted an “act or proceeding” subject to review. His determination
that the application had been validly reinstated through the initial
correspondence was overturned on appeal. The Court of Appeal did not question
whether the Commissioner’s actions were reviewable but held that as the
statutory requirements for reinstatement under section 73 had not been met, the
erroneous notice was of no force or effect.
[26]
By analogy to Pfizer, the
Commissioner’s errors in this case including the acceptance of the 2005 maintenance
fee and failure to issue a notice of abandonment can’t be relied upon to revive
an application which the statute has deemed abandoned.
[27]
Pfizer was
followed in Hoffman-LaRoche and Eiba, above, also cases dealing
with the failure to pay fees. In each instance, the Court determined that as a
threshold question, it had jurisdiction under section18.1 of the Federal
Courts Act to judicially review administrative actions taken by the
Commissioner of Patents. However, this does not mean that the Court has the
jurisdiction to grant a remedy under subsection 18.1(3) of the Federal
Courts Act, where the abandonment, or as was the situation in Hoffman-LaRoche,
the expiry of a reissued patent, results not from any discretionary decision of
the Commissioner but by operation of the statute.
[28]
The Commissioner has only the
powers explicitly granted in the Act. A statutory body, such as the
Commissioner of Patents, has no inherent jurisdiction to relieve against
inadvertent errors or omissions such as occurred in this instance. This was
made clear by the Court of Appeal in the analogous context of administrative actions
taken by the Registrar of Trademarks in Anheuser-Busch, Inc. v. Carling
O’Keefe Breweries of Canada Ltd., [1983] 2 F.C. 71 (C.A.), 142 D.L.R. (3d)
548.
[29]
In
circumstances where a statutory regime has been expressly laid out by
Parliament, without discretionary powers granted to the body overseeing the
operation of the statute, the effects of that regime cannot be waived either by
the administrative body or this Court. Even where steps have been taken by the Commissioner to ease harsh
consequences, they are of no effect where they are not explicitly authorized by
the Act: Barton No-till Disk Inc. v. Dutch Industries Ltd., 2003
FCA 121, [2003] 4 F.C. 67, leave to appeal to the S.C.C. dismissed
December 11, 2003, [2003] S.C.C.A. No. 204.
[30]
The applicant submitted that
section 73(1)(a) of the Act requires the Commissioner of Patents to
decide whether an applicant’s response to a requisition has been in good faith.
It was further argued that that decision is reviewable, and the clear attempts
of the applicant to respond to the requisition letter would meet the
requirements of that section. The respondents countered that there is no
question of assessing good faith where there was no response. They asserted
that each requisition must be given a separate response and that DBC Marine
failed to respond to the second requisition contained in the Office Action of
August 10, 2004.
[31]
As
I have noted above, I find the applicant’s argument in this matter
unpersuasive. The applicant failed to respond to both requisitions, despite the
clear indication on the letter received by their agent that such lapse would
result in abandonment. Replying in good faith to one requisition in an office
action containing two is not the equivalent of replying in good faith to both. The
statute allows for no “good faith” exception to the requirements of paragraph
73 (1)(a) where there has been a failure to respond to a requisition.
[32]
The
applicant further argued that the question of whether a reply has been in good
faith is an inherently subjective one, which the patent applicant cannot answer
for themselves. It is thus necessary, it is contended, that the Examiner issue
a Final Action under Rule 30 where the applicant has failed to adequately
respond to a substantive requisition, and the twelve-month period in which the
application could be reinstated would begin.
[33]
The abandonment and reinstatement
provisions of the Act do not allow for the exercise of discretion by the
Commissioner but impose obligations upon the applicant that must be met. There
is no decision on the Commissioner’s part in this process which affects the
rights of the applicant: F. Hoffman-La Roche AG v. Canada
(Commissioner of Patents), 2005 FCA
399, [2005] F.C.J. No. 1977. This lack of discretion includes the inability to
set a new point to begin the period in which reinstatement can occur.
[34]
Thus, where an applicant fails to
respond to a requisition and the application is not reinstated within the year
provided to rectify the situation, the patent application is abandoned as a
matter of law. There is no discretionary decision which is reviewable by
the Court.
[35]
In
written submissions, the applicant raised an interpretive argument that the use
of the phrase ‘toute demande’ as equivalent to ‘requisition’ in section
73(1)(a) is not mirrored in Rule 29, where the verb ‘exiger’ is used. Applying
the statutory interpretive principle of the equal authority of the French and
English language texts, this must indicate that the term ‘requisition’ in
section 73(1)(a) has a different meaning than in Rule 29. The applicant then
submits that the noun ‘requisition’ must be interpreted as the document on
which the requests are drawn up; that is, the form itself rather than the
individual requests. This argument was not raised in oral submissions, nor did
the respondent articulate any position on it.
[36]
It
seems to me that this form of application of the bilingual rule of statutory
interpretation fails to recognize that languages may not always have parallel
structures. In this particular case, there is no noun form of ‘exiger’ which would
convey the concept of a ‘requisition’. When the French version of section
73(1)(a) is read in its entirety, however, it is quite clear that the word
‘demande’ is given additional force to render its meaning essentially
equivalent to ‘requisition’. I
cannot, therefore, accept the applicant’s
submissions on this point. The requirement of section 73(1)(a) is to respond to
each requisition of the Commissioner; that is, each individual request for
information.
Procedural fairness;
[37]
Paragraph
73 (1) (a) of the Act provides that an application shall be deemed abandoned if
the applicant does not reply “…in good faith to any requisition…”
within the prescribed period. The applicant argues that the previous policy of
the Patent Office had been to accept a response to an Office Action or
Examiner’s Report as a sign of a good faith response to the requisitions therein
even when not at all of them have been answered. The applicant further submits
that the alteration of this long-standing custom is unfair not only to themselves
but to all patent applicants putting at risk of deemed abandonment, thousands
of applications filed since 1996.
[38]
The
evidence is that notwithstanding the 2003 adoption of the “multiple
abandonments” concept and notice to the profession in an effort to emphasize
that a response was required to each requisition, the Patent Office continued
the practice of formal or informal “courtesy” communications that one or more
requisitions, notably those pursuant to section 29, had been overlooked. Where
the deadline had passed, a timely notice of abandonment would be issued. This
practice served to protect the rights of the applicants which could otherwise
be lost through mere inadvertence. Had it been applied in this case, there is
no doubt that the necessary steps to procure reinstatement of the application
would have been taken. There is no dispute that the Patent Office
failed to provide a timely notice of
abandonment in this case. But in so doing, did it deny the applicant procedural
fairness?
[39]
While
it was not characterized as such by the applicant, the submission that it was
denied procedural fairness by the Patent Office is tantamount to an
argument based on the principle of legitimate expectations. In essence, the
applicant’s position is that it was induced to its detriment to rely upon the pre-2003
practice of the Office to accept partial responses to multiple requisitions and
upon the continuing practice of the Office to provide notice of default so as
to allow timely reinstatement of applications deemed abandoned.
[40]
As
I found in Eiba, above, in an analogous context where one request for
reinstatement with the required fee had been received by the Patent Office but
not another, the legitimate expectations doctrine applies to situations
where an applicant has been led to believe that he will have a right to make
representations to, or be consulted by, a government decision-maker, prior to a
particular decision being taken: Old St. Boniface Residents Ass. Inc. v. Winnipeg
(City), [1990] 3 S.C.R. 1170. I was not persuaded then, nor am I now, that
it applies where an administrative body has, in its past practice, brought
deficiencies in the filing process to an applicant's attention, so as to create
an expectation that the Commissioner will catch each slip, even inadvertent
ones, of an applicant.
[41]
I concluded in Eiba that the Commissioner has no duty to
provide notice to an applicant that an application has not been properly
reinstated, when the obligation to reinstate an abandoned application, by
submitting certain prescribed materials and fees, is clearly placed on the
shoulders of the applicant by the legislative scheme. In my view, the same
reasoning applies here even where the Commissioner’s office has followed a
general practice of delivering timely notice when an initial deadline was
missed.
[42]
Finally, the applicant alleges
that the Commissioner breached her duty of procedural fairness in dealing with
this patent application, both in failing to follow its own guidelines and in
failing to provide a reasonable notice period for the applicant to resolve the
problem. It submits that the specific guideline of section 19.07.03 of the
Manual of Patent Office Procedure, which provides that the applicant will be
notified where information requisitioned under Rule 29 is not supplied, should
take precedence over the more general provisions of section 20.07, which notes that
a notice of abandonment is not always sent and is a courtesy. The Commissioner
has accepted the duty to provide notice. It is, therefore, also under a duty
to provide this notice in a timely manner which allows the applicant to take
remedial action.
[43]
It
is a general rule that, while guidelines may be legally and properly set out by
a Minister, and by extension the Commissioner, those guidelines cannot confine
his or her discretion: Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R.
2, [1982] S.C.J. No. 57. As I have already decided that the Commissioner had no
discretion in the automatic application of the Act, any failure on her
part to follow the guidelines of the Manual cannot relieve the applicant of its legislated obligations, nor can it
allow the applicant to avoid the legal consequences of failing to satisfy those
obligations.
[44]
In
the circumstances the respondents do not seek their costs in this matter and
none will be awarded.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is dismissed.
The parties shall bear their own costs.
“Richard G. Mosley”
SCHEDULE A
Patent Act, ( R.S., 1985, c. P-4 )
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73. (1) An application
for a patent in Canada shall be deemed to be abandoned if the applicant does
not
(a) reply in good faith to any
requisition made by an examiner in connection with an examination, within six
months after the requisition is made or within any shorter period established
by the Commissioner;
(b) comply with a notice given
pursuant to subsection 27(6);
(c) pay the fees payable under
section 27.1, within the time provided by the regulations;
(d) make a request for
examination or pay the prescribed fee under subsection 35(1) within the time
provided by the regulations;
(e) comply with a notice given
under subsection 35(2); or
(f) pay the prescribed fees
stated to be payable in a notice of allowance of patent within six months
after the date of the notice.
(2) An application shall also
be deemed to be abandoned in any other circumstances that are prescribed.
(3) An application deemed to
be abandoned under this section shall be reinstated if the applicant
(a) makes a request for
reinstatement to the Commissioner within the prescribed period;
(b) takes the action that
should have been taken in order to avoid the abandonment; and
(c) pays the prescribed fee
before the expiration of the prescribed period.
(4) An application that has
been abandoned pursuant to paragraph (1)(f) and reinstated is subject to
amendment and further examination.
(5) An application that is
reinstated retains its original filing date.
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73. (1) La demande de brevet est considérée comme abandonnée si le
demandeur omet, selon le cas :
a) de répondre
de bonne foi, dans le cadre d’un examen, à toute demande de l’examinateur,
dans les six mois suivant cette demande ou dans le délai plus court déterminé
par le commissaire;
b) de se
conformer à l’avis mentionné au paragraphe 27(6);
c) de payer,
dans le délai réglementaire, les taxes visées à l’article 27.1;
d) de présenter
la requête visée au paragraphe 35(1) ou de payer la taxe réglementaire dans
le délai réglementaire;
e) de se
conformer à l’avis mentionné au paragraphe 35(2);
f) de payer les
taxes réglementaires mentionnées dans l’avis d’acceptation de la demande de
brevet dans les six mois suivant celui-ci.
(2) Elle est
aussi considérée comme abandonnée dans les circonstances réglementaires.
(3) Elle peut
être rétablie si le demandeur :
a) présente au
commissaire, dans le délai réglementaire, une requête à cet effet;
b) prend les
mesures qui s’imposaient pour éviter l’abandon;
c) paie les
taxes réglementaires avant l’expiration de la période réglementaire.
(4) La demande
abandonnée au titre de l’alinéa (1)f) et rétablie par la suite est sujette à
modification et à nouvel examen.
(5) La demande
rétablie conserve sa date de dépôt.
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Patent Rules (SOR/96-423)
|
29. (1) Where an
examiner examining an application in accordance with section 35 of the Act or
the Act as it read immediately before October 1, 1989 has reasonable grounds
to believe that an application for a patent describing the same invention has
been filed, in or for any country, on behalf of the applicant or on behalf of
any other person claiming under an inventor named in the application being
examined, the examiner may requisition from the applicant any of the
following information and a copy of any related document:
(a) an identification of any
prior art cited in respect of the applications;
(b) the application numbers,
filing dates and, if granted, the patent numbers;
(c) particulars of conflict,
opposition, re-examination or similar proceedings; and
(d) where a document is not in
either English or French, a translation of the document, or a part of the
document, into English or French.
(2) Where an examiner
examining an application in accordance with section 35 of the Act or the Act
as it read immediately before October 1, 1989 has reasonable grounds to
believe that an invention disclosed in the application was, before the filing
date of the application, published or the subject of a patent, the examiner
may requisition the applicant to identify the first publication of or patent
for that invention.
(3) Subsections (1) and (2)
do not apply to any information or document that is not available or known to
the applicant, provided that the applicant states the reasons why the
information or document is not available or known.
|
29. (1) Lorsque l’examinateur chargé de l’examen d’une demande
conformément à l’article 35 de la Loi ou de la Loi dans sa version antérieure
au 1er octobre 1989 a des motifs raisonnables de croire qu’une demande de
brevet visant la même invention a été déposée dans tout pays ou pour tout
pays, au nom du demandeur ou d’une autre personne se réclamant d’un inventeur
désigné dans la demande examinée, il peut exiger que le demandeur lui
fournisse les renseignements suivants et des copies des documents connexes :
a) toute
antériorité citée à l’égard de ces demandes;
b) les numéros
des demandes, les dates de dépôt et les numéros des brevets s’ils ont été
octroyés;
c) les détails
relatifs aux conflits, oppositions, réexamens ou procédures analogues;
d) si le
document n’est ni en français ni en anglais, une traduction en français ou en
anglais de tout ou partie du document.
(2) Lorsque
l’examinateur chargé de l’examen d’une demande conformément à l’article 35 de
la Loi ou de la Loi dans sa version antérieure au 1er octobre 1989 a des
motifs raisonnables de croire qu’une invention mentionnée dans la demande
faisait l’objet, avant la date du dépôt de la demande, d’une publication ou
était brevetée, il peut exiger que le demandeur précise la première
publication ou le brevet se rapportant à cette invention.
(3) Les
paragraphes (1) et (2) ne s’appliquent pas aux renseignements et documents
qui ne sont pas à la disposition du demandeur ou qui ne sont pas connus de
lui, dans la mesure où il donne les motifs pour lesquels ils ne le sont pas.
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98. (1) For an
application deemed to be abandoned under section 73 of the Act to be
reinstated, the applicant shall, in respect of each failure to take an action
referred to in subsection 73(1) of the Act or section 97, make a request for
reinstatement to the Commissioner, take the action that should have been
taken in order to avoid the abandonment and pay the fee set out in item 7 of
Schedule II, before the expiry of the 12-month period after the date on which
the application is deemed to be abandoned as a result of that failure.
(2) For the purposes of
subsection (1), if an application is deemed to be abandoned for failure to
pay a fee referred to in subsection 3(3), (4) or (7), for the applicant to
take the action that should have been taken in order to avoid the
abandonment, the applicant shall, before the expiry of the time prescribed by
subsection (1), either
(a) pay the applicable
standard fee, or
(b) file a small entity
declaration in respect of the application in accordance with section 3.01 and
pay the applicable small entity fee.
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98. (1) Pour que la demande considérée comme abandonnée en
application de l’article 73 de la Loi soit rétablie, le demandeur, à l’égard
de chaque omission visée au paragraphe 73(1) de la Loi ou à l’article 97,
présente au commissaire une requête à cet effet, prend les mesures qui s’imposaient
pour éviter l’abandon et paie la taxe prévue à l’article 7 de l’annexe II,
dans les douze mois suivant la date de prise d’effet de l’abandon.
(2) Pour
prendre les mesures qui s’imposaient pour éviter l’abandon pour non-paiement
de la taxe visée aux paragraphes 3(3), (4) ou (7), le demandeur, avant
l’expiration du délai prévu au paragraphe (1) :
a) soit paie la
taxe générale applicable;
b) soit dépose,
à l’égard de sa demande, la déclaration du statut de petite entité
conformément à l’article 3.01 et paie la taxe applicable aux petites entités.
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