Maintenance fee payment is an area of patent practice that is particularly fraught with danger for patent applicants and patent agents alike.
Troubling cases that impose serious liability and/or loss of rights emerge regularly in Canadian jurisprudence.
Few Canadian IP practitioners (even ‘trademark people’!) would not remember the infamous Dutch Industries case (Dutch Industries Ltd v Commissioner of Patents 2003 FCJ 396 [FCA]) that was decided by the Federal Court of Appeal in 2003.
The validity of countless patents and patent applications was put in jeopardy by this decision which held, inter alia, that the Commissioner of Patents had no jurisdiction to accept corrective payments made by applicants to cure certain deficiencies in their maintenance fee payments (relating to small entity/large entity status—meaning that their applications could be irretrievably abandoned.
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