Federal Court Upholds Commissioner´s Interpretation Of "Clerical Error"

In Dow Chemical Company v. Canada (Attorney General) [2007 FC 1236], the Federal Court considered the meaning of a "clerical error" that may be rectified under section 8 of the Patent Act (the Act).  The Dow Chemical Company (Dow) sought judicial review of a decision of the Commissioner of Patents (the Commissioner), who had declined to correct a patent application by adding nine pages of missing text.

More than a year after its application was laid open for public inspection, Dow asked the Commissioner to insert the missing pages.  The Commissioner declined because Dow had failed to explain the error.  Dow later asked the Commissioner to reconsider and provided a letter from its Canadian solicitors and an affidavit sworn by its United States patent attorney.  The evidence stated that the pages must have inadvertently been deleted while the US application was being revised for Canada.