Claim Date

Outline
  • Claim date: The term claim date refers to the date of a claim in a patent application. The claim date is the filing date, unless:
    1. there is a prior application that discloses the subject-matter defined by the claim,
    2. the subject patent application is filed within 12 months of the filing date of the prior application, and
    3. the applicant made a request for priority on the basis of the prior application,
    in which case the claim date is the date of the prior application: sections 2 and 28.1 of the Patent Act.
  • Separate dates: Each claim has a separate claim date and each alternative in a claim has a separate claim date: section 28.1 and subsection 27(5) of the Patent Act.
  • Restoration of the right of priority: If the subject patent application is filed over 12 months but within 14 months after the prior application and the failure to file within 12 months was unintentional, then the filing date of the subject patent application may be deemed to be within 12 months of the filing date of the prior application: subsection 28.4(6) of the Patent Act.

Legislation

Section 2 of the Patent Act

The Patent Act defines the terms claim date and request for priority. The claim date is the date of a claim in an application for a patent in Canada. A request for priority is a request made under section 28.4.

claim date means the date of a claim in an application for a patent in Canada, as determined in accordance with section 28.1;

request for priority means a request under section 28.4;

Section 28.1 of the Patent Act

The claim date is a patent application’s filing date unless certain conditions have been met, in which case it is the date of filing of a previous patent in respect of which priority has been claimed.

Claim date

28.1 (1) The date of a claim in an application for a patent in Canada (the pending application) is the filing date of the application, unless

(a) the pending application is filed by

(i) a person who has, or whose agent, legal representative or predecessor in title has, previously regularly filed in or for Canada an application for a patent disclosing the subject-matter defined by the claim, or

(ii) a person who is entitled to protection under the terms of any treaty or convention relating to patents to which Canada is a party and who has, or whose agent, legal representative or predecessor in title has, previously regularly filed in or for any other country that by treaty, convention or law affords similar protection to citizens of Canada an application for a patent disclosing the subject-matter defined by the claim;

(b) the filing date of the pending application is within twelve months after the filing date of the previously regularly filed application; and

(c) the applicant has made a request for priority on the basis of the previously regularly filed application.

Claims based on previously regularly filed applications

(2) In the circumstances described in paragraphs (1)(a) to (c), the claim date is the filing date of the previously regularly filed application.

Subsection 27(5) of the Patent Act

In the case of claims reciting alternatives, subsection 27(5) and section 28.1 together provide that each alternative has a separate claim date.

Separate claims

(5) For greater certainty, if a claim defines the subject-matter of an invention in the alternative, each alternative is a separate claim for the purposes of sections 2, 28.1 to 28.3, 56 and 78.3.

Subsection 28.4(6) of the Patent Act

The 12 month requirement of paragraph 28.1(1)(b) of the Patent Act is subject to a mechanism called the restoration of the right of priority. The restoration of the right of priority mechanism provides that if the subject patent application is filed over 12 months but within 14 months after the prior application and the failure to file within 12 months was unintentional, then the filing date of the subject patent application may be deemed to be within 12 months of the filing date of the prior application.

Filing date deemed to be within 12 months

(6) Subject to the regulations, for the purposes of paragraph 28.1(1)(b) and subparagraphs 28.2(1)(d)(iii) and 28.4(5)(a)(i) and (ii), the filing date of the pending application or the co-pending application, as the case may be, shall be deemed to be within 12 months after the filing date of the previously regularly filed application if

(a) the filing date of the pending application or the co-pending application, as the case may be, is more than 12 months after the filing date of the previously regularly filed application but within two months after the end of those 12 months; and

(b) the applicant, within the prescribed time,

(i) makes a request to the Commissioner for this subsection to apply,

(ii) states, in the request, that the failure to file the pending application or the co-pending application, as the case may be, within 12 months after the filing date of the previously regularly filed application was unintentional, and

(iii) complies with any prescribed requirements.