There are currently no third-party rights in Patent Law in Canada. However, the new Patent Rules (the “Rules”) expected to come into force by the end of 2019 will provide rights to third parties who, while the patent rights are uncertain, take actions in good faith which would otherwise constitute an infringement.
Third party rights would begin to accrue during the time which patent applications are deemed abandoned, but are still subject to reinstatement requests, as well as when the patent is deemed expired for failure to pay the maintenance fee on time but is still subject to reinstatement.
According to the Canadian Intellectual Property Office, third party rights are being introduced to mitigate the impact of long periods of uncertainty on third parties who may be interested in using the invention.
Patent filers are at risk of losing their patent rights and face bigger competition if they are using deliberate abandonment and reinstatement of an application as a delay strategy in the prosecution of their patent applications or are relying on the provisions of the reversal of a patent expiry. Patentees should therefore consult a PCK IP professional to establish the best possible strategy in order to protect their patent rights. For more information, please contact Stephen Perry.
Click here to obtain more general information on the new Rules expected to come into force later in 2019.