In Bayer Cropscience LP v. Canada (Attorney General), 2017 FC 178, the Federal Court (FC) agreed with the Commissioner of Patents (“Commissioner”) and dismissed Bayer Cropscience LP’s (Bayer) request to change the priority date for its Canadian Patent Application No 2,907,271 (the 271 Application) from April 19, 2012 to April 3, 2012.

The 271 Application claims priority from the US priority application No 61/619,691 (the 691 US Priority Application), which was filed with the United States Patent and Trademark Office (USPTO) on April 3, 2012. However, the USPTO refused to grant Bayer a filing date of April 3, 2012 due to its failure to file the drawings until April 19, 2012. Bayer did not contest the USPTO’s filing date of April 19, 2012 until April 14, 2015, at which time the USPTO conceded that the drawings were not, in fact, required and amended the filing date for the 691 US Priority Application to April 3, 2012.

Bayer subsequently requested that the 271 Application be given a filing date of April 3, 2012 on the basis that it was claiming priority from the 691 US Priority Application, which had an amended filing date of April 3, 2012. The Commissioner denied Bayer’s request on December 3, 2015, concluding that the correct date was April 19, 2012.

In this application for judicial review, the FC found that the Commissioner had correctly concluded that section 88(1)(b) of the Patent Rules requires that a request for a priority date be made within 16 months of the filing date of the application for which priority is sought, which Bayer has failed to comply with.  Accordingly, the FC concluded that no correction to Bayer’s priority claim was required.

Summary By: Sumaiya Sharmeen

E-TIPS® ISSUE

17 03 08