Canadian Commissioner of Patents Must Correct Erroneous Issue Date

The discretion of the Canadian Commissioner of Patents to correct errors in official Patent Office records was the subject of a recent Federal Court decision, The Procter & Gamble Company et al v The Commissioner of Patents. The Procter & Gamble Company (P&G) is the owner of a Canadian patent relating to the osteoporosis drug Didrocal. In the course of separate litigation involving the Didrocal patent, it came to light that the patent had not been submitted for registration under the Canadian Patented Medicines (Notice of Compliance) Regulations within 30 days of the issue date shown on its cover page, June 11, 1996. However, P&G argued that the issue date on the cover was incorrect and it produced a letter from the Patent Office stating that, due to printing delays, June 11, 1996 patents were mailed on June 18, 1996. P&G submitted a request to have the Commissioner officially change the issue date to June 18, 1996, under section 8 of the Patent Act, which provides that clerical errors in any instrument of record in the Patent Office "may" be corrected under the authority of the Commissioner. The Commissioner refused to exercise discretion under section 8, as he considered the issue date error not to be an error "made in the mechanical process of writing or transcribing". On P&G's application for judicial review of the decision, the Federal Court found that, by his refusal to change the official issue date, the Commissioner had erred in law. Justice Barnes noted that clerical errors are not limited to mechanical or written errors, but may also include entry of incorrect data. As a result, the Commissioner has a broad authority to correct various types of errors. Further, the Court noted that, quite apart from his discretionary authority under section 8, the Commissioner has a duty to ensure that the Patent Office records are maintained accurately. In this case, the issue date was incorrectly recorded as June 11, 1996, since the patent was not delivered or made available to the public until June 18, 1996. The Court held that "issuance" requires not only signing and sealing the certificate, but also delivery and public distribution of the patent. The Court held that the incorrect issue date must be corrected and granted an order of mandamus requiring the Commissioner to make this change. For the full text of the decision (2006 FC 976), see: http://decisions.fct-cf.gc.ca/en/2006/2006fc976/2006fc976.html Summary by: Jennifer Jannuska and Gordon Jepson