Bayer Cropscience LP v. Canada (Attorney General), 2017 FC 178
The Federal Court dismissed Bayer's application for judicial review of the Commissioner of Patents' decision refusing Bayer's request to amend the priority date for Canadian Patent Application No 2,907,271 (the '271 Application).
In this case, Bayer had filed a PCT Patent Application (the ‘888 PCT Application) and could claim a prior filing date based on the filing date of a previous application (the ‘691 US Priority Application). At the time of filing the ‘888 PCT Application, the filing date for the '691 US Priority Application was recorded as April 19, 2012. The filing date of the '691 US Priority Application was later amended to April 3, 2012. However, the filing date for the '888 PCT Application was never successfully amended.
In August 2015, the '888 PCT Application entered the national phase in Canada as the '271 Application. Bayer requested that it be given a filing date of April 3, 2012 on the basis that it was claiming priority from the ‘691 US Priority Application. The Commissioner denied Bayer's request, concluding that the Bayer's August 2015 request was not within the 16-month period following the filing date of the ‘691 US Priority Application.
The Federal Court concluded that the Commissioner correctly interpreted the Patent Rules in finding that Bayer's request to amend the priority date was out of time. The application for judicial review was dismissed with costs.