La Cour fédérale révise une date de redélivrance du Commissaire aux brevets

Dans l’affaire Procter & Gamble Company v. Commissioner of Patents, 2006 FC 976, (August 15, 2006), la Cour fédérale analyse une situation particulière dû au changement de l’identité du Commissaire il y a quelques années qui a affecté la date de livraison de brevets redélivrés. P&G, dans une autre cause, devait soumettre un document à l’intérieur de 30 jours de cette date de délivrance (d’où leur intérêt sur la question)

Voici des extraits pertinents de la décision:

        The process for issuing patents which the Patent Office follows is usually very efficient and regular.  In 1996, the legal formalities described in section 43 of the Patent Act required that a patent certificate be prepared and executed by the Commissioner under the seal of the Patent Office.  In the case of the Didrocal Patent, however, the usual practices were not followed.  It is undisputed that this patent was intended to be issued on June 11, 1996, but because a new Commissioner had taken office no certificates were available that day bearing his signature.  In the result, new patent certificates were obtained, executed and sealed on or around Monday, June 17, 1996.  One of these was the Didrocal Patent Certificate.  All of the patent certificates that were intended to be issued on Tuesday, June 11, 1996 were then actually ready for pickup or mailed out on Tuesday, June 18, 1996.  Those certificates bore the date of the original intended day of issuance of June 11, 1996 and not the date of actual dissemination to the patentees, including P & G.
[30]           In this case, it is indisputable that the Didrocal Patent Certificate was published or delivered on Tuesday, June 18, 1996.  It is also clear that all of the section 43 formalities for issuing the Didrocal Patent were not completed until June 18, 1996.  This point is acknowledged in the Commissioner’s written submissions to the Court where it was stated that “[t]he process of adding patent numbers and the issue/re-issue date to these certificates and then sealing the certificates and attaching them to the patent grants was not completed until early on June 18, 1996.”  The Commissioner’s inability, therefore, to precisely determine the date of execution of the Didrocal Patent Certificate is irrelevant.  The Didrocal Patent Certificate should have borne an issue date of June 18, 1996, that being its date of completion and delivery.  The refusal of the Commissioner to correct that entry in the records of the Patent Office constitutes an error of law.  In the result, I would order the Commissioner to amend the records of the Patent Office pertaining to the Didrocal Patent to reflect a date of issuance of June 18, 1996. 


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