Strategic Considerations: Canadian Post-grant Patent Administrative Procedures

The Canadian patent system provides multiple post-grant administrative procedures that allow patentees and third parties to challenge or amend Canadian patents without requiring legal proceedings before the courts. While these mechanisms are narrower than those available in the United States, they can be of strategic value in particular circumstances.

Re-examination

Section 48.1 of the Patent Act provides that any person, including the patentee, may request re-examination of one or more claims of a granted patent at any time during its term. The request must be based on prior art patents, published applications, or printed publications, and must explain how the cited art applies to the challenged claims. Accordingly, parties can only use re-examination to challenge the validity of a patent based on anticipation or obviousness.