Filing Date

The filing date, for Canadian patent applications, is defined as the date on which the patent application is filed according to section 28 or subsection 28.01(2) or 36(4).

filing date means the date on which an application for a patent in Canada is filed, as determined in accordance with section 28 or subsection 28.01(2) or 36(4);

The documents and information prescribed by section 71 of the Patent Rules must be filed in order to receive a filing date.

Filing date

28 (1) Subject to subsections 28.01(2) and 36(4), the filing date of an application for a patent in Canada is the date on which the Commissioner receives the prescribed documents and information or, if they are received on different dates, the latest of those dates.

Outstanding documents and information

(2) The Commissioner shall notify an applicant whose application does not contain all of the documents and information referred to in subsection (1) of the documents and information that are outstanding and require that the applicant submit them within two months after the date of the notice.

Application deemed never filed

(3) If the Commissioner does not receive the outstanding documents and information within that two-month period, the application is deemed never to have been filed. However, any fees paid in respect of the application shall not be refunded to the applicant.

To receive a filing date, the application must include a quasi-petition and a quasi-specification.

Prescribed documents and information

71 The documents and information prescribed for the purposes of subsection 28(1) of the Act are

(a) an explicit or implicit indication that the granting of a Canadian patent is being sought;

(b) information allowing the identity of the applicant to be established;

(c) information allowing the Commissioner to contact the applicant; and

(d) a document, in any language, that on its face appears to be a description.

In certain circumstances where an addition is made to the specification or a drawing, the filing date is the later of the date of the addition and the original filing date.

Addition to specification or addition of drawing to application

28.01 (1) Subject to the regulations, an applicant may, within the prescribed period, add to the specification that is contained in their application or add a drawing to their application for a patent by submitting the addition to the Commissioner along with a statement by the applicant indicating that the addition is being made under this section. The prescribed period shall not end later than six months after the earliest date on which the Commissioner receives any document or information under subsection 28(1).

Filing date

(2) If an applicant submits an addition to the Commissioner under subsection (1) and the addition is not withdrawn within the prescribed period, the filing date of the application is the later of the date on which the Commissioner receives the addition and the filing date referred to in subsection 28(1), unless

(a) the applicant has, on the earliest date on which the Commissioner receives any document or information under subsection 28(1), made a request for priority in respect of the application under section 28.4;

(b) the addition is completely contained in a previously regularly filed application on which the request for priority is based;

(c) the applicant requests, in accordance with the regulations, that the filing date be the filing date referred to in subsection 28(1); and

(d) the applicant complies with any prescribed requirements.

Addition deemed in application

(3) In the circumstances set out in paragraphs (2)(a) to (d), the addition is deemed to have been contained in the application on its filing date for the purposes of subsections 38.2(2) and (3).

A divisional application is deemed to have the same filing date as the parent.

Separate applications

(4) A divisional application shall be deemed to be a separate and distinct application under this Act, to which its provisions apply as fully as may be, and separate fees shall be paid on the divisional application and, except for the purposes of subsections 27(6) and (7), it shall have the same filing date as the original application.

A patent application that is filed under the PCT and enters the Canadian national phase is deemed to have been filed in Canada on the international filing date.

161 The filing date of a PCT national phase application is the international filing date.