Patent Term Adjustment

As part of budget bill C-47, proposed amendments to the Patent Act would address term adjustment based on delays during prosecution if the applicant applies for the additional term within three months of patent grant.

A key amendment would add a new section 46.1 to the Patent Act that would say:

46.1 (1) The Commissioner shall grant an additional term for a patent if

(a) the patent was issued after the later of

(i) the fifth anniversary of the applicable day set out in subsection (2), and

(ii) the third anniversary of the first day, without taking subsection 35(4) into account, on which a request for examination has been made under section 35 in respect of the application for the patent, the prescribed fee referred to in subsection 35(1) has been paid and, if applicable, the prescribed late fee referred to in paragraph 35(3)(a) has been paid;

(b) the filing date for the application for the patent is on or after December 1, 2020; and

(c) the patentee applies for the additional term in accordance with the regulations, and pays the prescribed fee, within three months after the day on which the patent is issued.

Although many of the details would be defined in regulations that would be issued later, this appears to implement rules that would likely apply patent term adjustment if the examination/allowance process takes more than 3 years from the request for examination and more than 5 years from filing (with special cases for national phase entries and divisionals).