Newsflash January 27 2010 - Form Triumphs Over Substance

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Strict compliance with the formal requirements specified under Canadian Patent legislation has been confirmed. In Unicrop Ltd. v. Canada (Attorney General) 2010 FC 61, a decision of the Federal Court released January 20, 2010, the Court once again emphasized the importance of having only the authorized correspondent (usually the Canadian patent agent) pay maintenance fees for a patent application. The Courts have confirmed that there is no discretion to vary or grant equitable relief for failure to meet the formal requirements specified under the Patent Act. Any failure to comply with these mandatory requirements will lead to deemed abandonment of the patent application. This follows on an earlier decision by the Federal Court in Rendina v. Canada (Attorney General), 2007 FC 914, [2008] 3 F.C.R. 3. In Redina, the Canadian Intellectual Property Office refused to accept a fee payment by the patentee/owner as a patent agent had been appointed.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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