Nobody’s Perfect - Canadian Court Addresses The Standard When Correcting Clerical Errors

In the recent case of Repligen Corporation v. Canada (Attorney General) (2012 FC 931), the Federal Court granted a second application for judicial review of a decision made by the Commissioner of Patents. This decision provides greater guidance as to the factors that should be considered when exercising discretion to correct a clerical error under Section 8 of the Patent Act. In this case, the Federal Court overturned the Commissioner's refusal to correct the inversion of two digits of the Applicant's patent number, which resulted in the loss of the Applicant's patent.

As a result of the digit inversion, the Applicant's patent lapsed in July 2008 due to non-payment of the prescribed fees. Upon discovery of the error, Repligen filed a request to correct the error and reinstate the patent. While the Commissioner acknowledged that the inversion of the patent number digits was clerical in nature, she refused to fulfill the request on the basis that third parties may have