| Citation: |
Scannex Technologies, LLC v. Canada (Attorney General), 2009 FC 1068, [2009] 4 F.C.R. D-12 |
T-166-09 |
Patents
Judicial review of Commissioner of Patents decision refusing to substitute incorrect figures submitted by applicant in support of its Canadian patent application No. 2373253 pursuant to Patent Act, R.S.C., 1985, c. P-4, s. 8—U.S. application successful, patent issued, but corresponding international patent application (PCT) filed with incorrect set of figures (i.e. not the same figures as those filed with U.S. application)—PCT then entering national phase in Canada—Canadian examiner’s report advising applicant that figures filed with application incorrect—Applicant submitting affidavit stating that incorrect figures due to unintentional clerk error, requesting Commissioner replace incorrect figures pursuant to Act, s. 8—This request refused—Commissioner not erring in applying definition of “clerical error” articulated in Bayer Aktiengesellschaft v. Commissioner of Patents, [1981] 1 F.C. 656 (T.D.)—Case law not extending definition beyond errors “mechanical in nature and made without thought” (Laboratoires Servier v. Apotex Inc., 2008 FC 825)—Such understanding reinforced by French text of Act, s. 8—Error leading to the filing of incorrect figures in patent application not clerical error—Application dismissed.
Scannex Technologies, LLC v. Canada (Attorney General) (T-166-09, 2009 FC 1068, Tremblay-Lamer J., judgment dated October 21, 2009, 11 pp.)