Canada's Federal Court of Appeal has established that the validity of issued patents cannot be challenged on the basis of misrepresentations to the patent office pursuant to Section 73(1)(a) of the Patent Act.
In its July 18, 2011 decision in Weatherford Canada Ltd v Corlac Inc (2011 FCA 228), the Canadian Federal Court of Appeal (FCA) firmly established that the validity of issued patents cannot be challenged on the basis of misrepresentations to the patent office pursuant to Section 73(1)(a) of the Patent Act.
The FCA explained that this section can only be used during the prosecution of a patent application and is unavailable once the patent issues. This resolves some uncertainty in Canadian jurisprudence regarding ‘duty of candour’ during the prosecution of patent applications.
Section 73(1)(a) provides that a patent application shall be deemed to be abandoned if the applicant does not reply in good faith to any requisition made by an examiner within the given time period. Reinstatement is possible, but only if obtained within a prescribed time.
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