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PCT Applications  -  National Entry into Canada

The Canadian Patent Rules have been amended to implement the 2002 changes to Article 22(1) of the Patent Cooperation Treaty whereby the minimum time limit for entry into the national phase is 30 months from the Paris Convention priority date, whether or not the applicant has timely demanded International Preliminary Examination.  The new Rules dealing with these changes are complicated by the fact that Canada permits an applicant to enter the national phase in Canada up to one year late (that is, up to 42 months after the priority date) on payment of a late fee at the time of national entry.  The transition provisions incorporate this peculiarity of Canadian patent law and extend the benefit of the 30-month deadline (effectively a 42-month deadline if the late-payment fee is paid) for entering the national phase in Canada, to those PCT applications for which a Demand has not been timely filed and for which the expiry of 32 months from the priority date is on or after 1 April 2002.   The deadlines for entering the national phase in Canada are as follows:

1.  If a Demand for Preliminary Examination has been timely filed prior to the expiry of 19 months from the priority date, the applicant will have until the expiry of 30 months from the priority date (or 42 months from the priority date if a late fee is paid at the time of national entry) to enter the national phase in Canada.

2.  If a Demand has not been timely filed, then:
a.  If the expiry of 30 months from the priority date occurs on or after 1 April 2002, the applicant has until 30 months from the priority date to enter the national phase in Canada (or 42 months from the priority date if a late fee is paid at the time of national entry).

b.  If the expiry of 30 months from the priority date occurs before 1 April 2002 but the expiry of 32 months from the priority date occurs on or after 1 April 2002, the applicant has until 42 months from the priority date to enter the national phase in Canada.

c.  If the expiry of 32 months from the priority date occurs before 1 April 2002, then it is too late for the application to enter the national phase in Canada, with a late fee payable at the time of national entry.

When instructing us to request national entry, associates should provide us with a single copy of the international application as published by the International Bureau of WIPO, and a copy of any amendments under Articles 19 and 34. If the international application was published in a language other than English, associates should provide us with two copies of an English translation. Amendments under Articles 19 and 34 should be translated into English if necessary and incorporated into the text of the specification. A translation into English of any statement filed under Article 19(1) is also required if not filed in English.

If the applicant in Canada is not the inventor, a copy of a written assignment to the applicant must be filed. Eventually a certified copy of the assignment must be filed.

In lieu of a standard Canadian Petition, a Request of Entry into the National Phase may be filed on national entry. We shall be pleased to send you copies of this form if you so request. If desired, photocopies of this form may be completed, executed by the applicant and sent to us with your instructions to request national entry. We can, however, prepare and execute the form ourselves, without requiring the applicant's signature.  Please refer to the previous section on non-PCT cases for information respecting Canadian patent applications generally. Note that for PCT cases, the actual filing date in Canada is the international filing date.

Nothing here written constitutes legal advice. The accuracy of what is written is not guaranteed.   
Please consult us about any specific matter on which you require legal advice.    © Barrigar Intellectual Property Law 2001