March 20, 1930 (16th Parliament, 4th Session)


Louis Édouard Fernand Rinfret (Secretary of State of Canada)



This section is intended
to remove an anomaly in the Patent Act caused 'by a contradiction between section 7 and section 8 of the act. Section 7 reads:
Any person who has invented any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvements thereof, not known or used by others before his invention thereof and not patented or described in any printed publication in this or any foreign country more than two years prior to his application and not in public use or on sale in this country for more than two years prior to his application may, on a petition to that effect, presented to the commissioner, and on compliance with the other requirements of this act, obtain a patent^ granting to such person an exclusive property in such invention.
In plain language, the meaning of the section is that an application may be made within two years. Section 8 reads:
Any inventor who elects to obtain a patent for his invention in a foreign country before obtaining a patent for the same invention in Canada, may obtain a patent in Canada if the patent is applied for within one year from-[DOT]
In other words, the period for the obtaining of a patent is given as one year. That anomaly was pointed out by the exchequer count in the case of Edward A. Russell vs. the Commissioner of Patents. In that case an application for a patent had been made in the United States on May 1, 1922, and the application for a Canadian patent was made on December 11, 1924, which application had been refused by the commissioner, his judgment being based upon section 8. The case was brought before tlhe exchequer court and that count ruled that section 7 should apply, pointing out the contradiction between the two sections. Hon. members may wonder why this anomaly has not been adjusted before, and I have little to say in that regard except that it was understood that when other amendments to the Patent Act were moved that anomaly would be adjusted. The reason for the confusion appears to be this: according to the international agreement reached at the conference at the Hague the period for the priority that can be claimed by a foreign patent in Canada or -any other country was fixed at one year, and when the adjustment was made to the act to deal with that specific disposition, section 8 was framed and inadvertently the time set for the obtaining of a patent ou-tside of any priority claim was also fixed at one year while in section 7, which includes the general rule concerning patents in Canada, the limit is two years. I have under my band the full judgment of the court on that case.

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