Federal Appeal

Intellectual Property


Application for patent

No mechanism to reinstate patent application after it had reached abandoned status

Agents filed patent application on behalf of appellant health services company and another group. Respondent Commissioner on behalf of Crown identified problems in application, and requested compliance. Company did not respond, and commissioner deemed application abandoned. Error was not corrected within 12-month reinstatement period. Patent rights were assigned from group to appellant university. Both appellants learned that application was abandoned in 2016. Appellants requested reinstatement, which was denied. Appellants unsuccessfully applied for judicial revie, in Federal Court. Appellants claimed that Federal Court mischaracterized issues on judicial review. Appellants claimed that commissioner erred in refusing reinstatement. Appellants appealed from judicial review. Appeal dismissed. Proper procedures were followed by commissioner in deeming application abandoned. Inaction of appellants did not show necessary good faith. There was no mechanism to reinstate application, after it had reached abandoned status. Commissioner properly explained process to appellants.

University of Alberta v. Canada (Attorney General) (2018), 2018 CarswellNat 301, 2018 FCA 36, Wyman W. Webb J.A., David G. Near J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 1892, 2017 CarswellNat 7401, 2017 FC 402, 2017 CF 402, James Russell J. (F.C.).

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