An Act respecting Patents of Invention (1869), 32 & 33 Vict, c 11

Assented to 22nd June, 1869

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enact as follows:

Patent Office Constituted

1. There shall be attached to the Department of Agriculture, as a branch thereof, an Office to be named The Patent Office; and the Minister of Agriculture for the time being shall be the Commissioner of Patents of Invention; and it shall be the duty of the said Commissioner to receive all applications, fees, papers, documents and models for patents, and to perform such acts and things respecting the granting and issuing of patents for new and useful inventions, discoveries, and improvements as are herein provided for; and he shall have the charge and custody of the books, records, papers, models, machines, and other things belonging to the said Office.

2. The Commissioner shall cause a seal to be made for the purposes of this Act, and may cause to be sealed therewith letters patent and other instruments and copies proceeding from the Patent Office; and all Courts, Judges, and other persons whomsoever shall take notice of such seal, and receive impressions thereof in evidence, in like manner as impressions of the Great Seal are received in evidence, and shall also take notice of and receive in evidence, without further proof and without production of the originals, all copies or extracts certified under the seal of the said Office to be copies of or extracts from documents deposited in such office.

3. The Commissioner may, from time to time subject to the approval of the Governor in Council, make such rules and regulations, and prescribe such forms, as may appear to him necessary and expedient for the purposes of this Act; and notice thereof shall be given in the Canada Gazette; and all documents, executed after the same and accepted by the Commissioner, shall be held valid so far as relating to proceedings in the Patent Office.

4. The Deputy of the Minister of Agriculture shall be the Deputy Commissioner of Patents of Invention; and the Governor may, from time to time, appoint such clerks and officers under him as may be necessary for the purpose of this Act, and such clerks and officers shall hold office during pleasure.

5. The Commissioner shall cause a report to be prepared annually and laid before Parliament of the proceedings under this Act, and shall from time to time, and at least once in a year, publish in the Canada Gazette a list of Patents granted, and may, with the approval of the Governor in Council, cause such specifications and drawings as may be deemed of interest, or essential parts thereof, to be printed from time to time for distribution or sale.

Who May Obtain Patents.

6. Any person having been a resident of Canada for at least one year next before his application, and having invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter, not known or used by others before his invention or discovery thereof, or not being at the time of his application for a patent in public use or on sale in any of the Provinces of the Dominion with the consent or allowance of the inventor or discoverer thereof, 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 therein; and the said Patent shall be under the seal of the Patent Office and the signature of the Commissioner, or the signature of another member of the Privy Council, and shall be good and avail to the grantee, his heirs, assigns or other legal representatives, for the period mentioned in such Patent; but no Patent shall issue for an invention or discovery having an illicit object in view, nor for any mere scientific principle or abstract theorem.

7. An original and true inventor or discoverer shall not be deprived of the right to a Patent for his invention or discovery by reason of his having, previously to his application, taken out a Patent therefor in any other country, at any time within six months next preceding the filing of his specification and drawing as required by this Act.

8. The Patent may be granted to any person to whom the inventor or discoverer, entitled under the sixth section to obtain a Patent, has assigned or bequeathed the right of obtaining the same, and the exclusive property in the invention or discovery in Canada, or in default of such assignment or bequest, to the executor or administrator of the deceased inventor, or discoverer or other legal representative.

9. Any person, having been a resident of Canada for at least one year next before his application, and who has invented or discovered any improvement on any Patented invention or discovery, may obtain a Patent for such improvements, but shall not thereby obtain the right of vending or using the original invention or discovery, nor shall the Patent for the original invention or discovery confer the right of vending or using the patented improvement.

10. In cases of joint applications, the Patent shall be granted in the names of all the applicants; and in such cases, any assignment from one of the said applicants or patentees to the other shall be registered in the manner of other assignments.

Conditions and Formalities.

11. Every applicant for a Patent, before he can obtain the same, shall make oath or when entitled by law to make an affirmation instead of an oath, shall make an affirmation that he verily believes that he is, or that the person whose assignee or representative he is, is or was the true inventor, or discoverer of the invention or discovery for which the Patent is solicited, and that he, or the person whose assignee or representative he is, was a resident of Canada for one year next before the application, or in case of death of the inventor or discoverer, for one year next before such death; such oath or affirmation may be made before any Justice of the Peace in Canada; but if the applicant is not at the time in Canada, the oath or affirmation may be made before any Minister Plenipotentiary, chargé d’affaires, consul or consular agent, holding commission under the government of the United Kingdom, or any Judge of the Country in which the applicant happens at the time to be.

12. The Petitioner for a Patent shall for all the purposes of this Act elect his domicile at some known and specified place in Canada, and mention the same in his Petition for a Patent, and he shall in the same Petition state the place or places in Canada, at which he, or, if his application be as assignee or representative, the person whose assignee or representative he is, was resident during the year of residence required by this Act, and the period of residence at each such place.

13. The applicant shall, in his Petition for a Patent, insert the title or name of his invention or discovery, its object and a short description of the same, and shall distinctly allege all the facts which are necessary under this Act to entitle him to a Patent therefor, and shall with the petition send in a written specification, in duplicate, of his invention or discovery, describing the same in such full, clear and exact terms as to distinguish it from all contrivances or processes for similar purposes.

14. The specification shall correctly and fully describe the mode or modes of operating contemplated by the applicant, and shall state clearly and distinctly the contrivances and things which he claims as new, and for the use of which he claims an exclusive property and privilege; it shall bear the name of the place where it is made, the date, and be signed by the applicant and two witnesses; in the case of a machine the specification shall fully explain the principle and the several modes in which it is intended to apply and work out the same; in the case of a machine or in any other case where the invention or discovery admits of illustration by means of drawings, the applicant shall also, with his application, send in drawings in duplicate showing clearly all parts of the invention or discovery; and each drawing shall bear the name of the inventor or discoverer and shall have written references corresponding with the specification, and a certificate of the applicant that it is the drawing referred to in the specification; but the Commissioner may require any greater number of drawings than those above mentioned, or dispense with any of them, as he may see fit; one duplicate of the specification and of the drawings, if any drawings, shall be annexed to the Patent, of which it forms an essential part, and the other duplicate shall remain deposited in the Patent Office.

15. The applicant shall also deliver to the Commissioner, unless specially dispensed from so doing for some good reason, a neat working model of his invention or discovery on a convenient scale, exhibiting its several parts in due proportion, whenever the invention or discovery admits of such model; and shall deliver to the Commissioner specimens of the ingredients, and of the composition of matter sufficient in quantity for the purpose of experiment, whenever the invention is a composition of matter; provided such ingredients and composition are not of an explosive character or otherwise dangerous, in which case they are to be furnished only when specially required by the Commissioner, and then with such precautions as shall be prescribed in the said requisition.

Contents, Duration, Surrender, Re-Issue of Patents and Disclaimers

16. Every patent granted under this Act shall recite briefly the substance of the petition on which it is granted, and shall contain the title or name of the invention or discovery and a short description of the same, referring for a fuller detail to the specification, and shall grant to the Patentee, his assigns and legal representatives, or in trust as the case may be, for the period therein mentioned from the granting of the same, the exclusive right, privilege and liberty of making, constructing and using, and vending to others to be used, the said invention or discovery, and shall contain a condition that it is nevertheless subject to adjudication before any Court of competent jurisdiction.

17. Patents of invention or discovery issued by the Patent Office shall be valid for a period of five years; but at or before the expiration of the said five years the holder thereof may obtain an extension of the patent for another period of five years, and after those second five years may again obtain a further extension for another period of five years; and the instrument delivered by the Patent Office for such extension of time shall be in the form which may be from time to time adopted, and shall be made in duplicate, one duplicate to remain of record and be duly registered, and the other to be attached, with a reference to the Patent, under the seal of the Patent Office, and signature of the Commissioner, or any other Privy Councillor in case of absence of the Commissioner.

18. Every such patent and every instrument for granting a further extension of any patent, shall, before it is signed by the Commissioner, or any other member of the Privy Council, and before the seal hereinbefore mentioned is affixed to it, be examined by the Minister of Justice, who, if he finds it conformable to law, shall certify accordingly; and such patent or instrument may then be signed and the seal affixed thereto, and being duly registered, shall avail to the grantee thereof and be delivered to him.

19. Whenever any patent shall be deemed defective or inoperative by reason of insufficient description or specification, or by reason of the patentee claiming more than he had a right to claim as new, but at the same time it appears that the error arose from inadvertence, accident or mistake, without any fraudulent or deceptive intention, the Commissioner may, upon the surrender of such patent, and the payment of the further fee hereinafter provided, cause a new patent in accordance with an amended description and specification, to be made by such patentee, to be issued to him for the same invention or discovery, for any part of the whole of the then unexpired residue of the five years period for which the original patent was or might have been, as hereinbefore directed, granted; In case of the death of the original patentee or of his having assigned the patent, a like right shall vest in his assignee or legal representative; The new patent, and the amended description and specification, shall have the same effect in law, on the trial of any action thereafter commenced for any cause subsequently accruing, as if the same had been originally filed in such corrected form before the issue of the original patent.

20. Similarly, whenever by any mistake, accident or inadvertence and without any wilful intent to defraud or mislead the public, a patentee has made his specification too broad, claiming more than that of which he or the party through whom he claims was the first inventor or discoverer or has in the specification claimed that he or the party through whom he claims was the first inventor or discoverer of any material or substantial part of the invention or discovery patented, of which he was not the first inventor or discoverer, and had no legal right thereto; the patentee may, on payment of the fee hereinafter provided, make disclaimer of such parts as he shall not claim to hold by virtue of the patent or the assignment thereof; such disclaimer shall be in writing, and in duplicate, and attested in the manner hereinbefore prescribed for a patent, one copy to be filed and recorded in the office of the Commissioner, the other copy to be attached to the Patent and made a part thereof by reference, and such disclaimer shall thereafter be taken and considered as part of the original specification; such disclaimer shall not affect any action pending at the time of its being made, except in so far as may relate to the question of unreasonable neglect or delay in making it; In case of the death of the original Patentee or of his having assigned the Patent, a like right shall vest in his assigns or legal representatives respectively, any of whom may make disclaimer; the Patent shall thereafter be deemed good and valid for so much of the invention or discovery as is truly the disclaimant’s own, and not disclaimed, provided it be a material and substantial part of the invention or discovery, and definitely distinguished from other parts claimed without right; and the disclaimant shall be entitled to maintain a suit for such part accordingly.

Assignment and Infringement of Patents

21. The Government of Canada may always use any patented invention or discovery, paying to the patentee such sum as the Commissioner may report to be a reasonable compensation for the use thereof.

22. Every patent for an invention or discovery whensoever issued shall be assignable in law either as to the whole interest or as to any part thereof, by any instrument in writing; but such assignment and also every grant and conveyance of any exclusive right to make and use and to grant to others the right to make and use the invention or discovery patented within and throughout the Dominion of Canada, or within and throughout any one or more of the Provinces of Ontario, Quebec, Nova Scotia or New Brunswick, or any part of any of such Provinces or of the Dominion shall be registered in the Office of the Commissioner; and every assignment affecting a Patent for invention or discovery shall be deemed null and void against any subsequent assignee unless such instrument is registered as hereinbefore prescribed, before the registering of the instrument under which such subsequent assignee may claim.

23. Every person who, without the consent in writing of the Patentee, makes, constructs or puts in practice any invention or discovery for which a Patent has been obtained under this Act, or procures such invention or discovery from any person not authorised to make or use it by the Patentee, and uses it, shall be liable to the Patentee in an action of damages for so doing; and the judgment shall be enforced, and the damages, and costs as may be adjudged, shall be recovered in like manner as in other cases in the Court in which the action is brought.

24. An action for the infringement of a Patent may be brought before any Court of Record having jurisdiction to the amount of damages asked for and having its sittings within the Province in which the infringement is said to have taken place, and being at the same time, of the Courts of such jurisdiction within such Province, the one of which the place of holding is nearest to the place of residence or of business of the defendant; and such Court shall decide the case and determine as to costs; in any action for the infringement of a Patent, the Court, if sitting, or any judge thereof in Chambers if the Court be not sitting may, on the application of the plaintiff or defendant respectively, make such order for an injunction, restraining the opposite party from further use, manufacture or sale of the subject matter of the patent, and for his punishment in the event of the disobedience to such order, or for inspection or account, and respecting the same and the proceedings in the action, as the Court or Judge may see fit; but from such order an appeal shall lie under the same circumstances and to the same Court, as from other judgments or orders of the Court in which the order was made.

25. Whenever the plaintiff fails to sustain his action, because his specification and claim embrace more than that of which he was the first inventor or discoverer, and it appears that the defendant used or infringed any part of the invention or discovery justly and truly specified and claimed as new, the Court may discriminate, and the judgment may be rendered accordingly.

26. The defendant in any such action may specially plead as matter of defence any fact or default which by this Act or by law would render the Patent void; and the Court shall take congnizance [sic] of that special pleading and of the facts connected therewith, and shall decide the case accordingly.

Nullity, Impeachment and Voidance of Patent.

27. A Patent shall be void, if any material allegation in the petition or declaration of the applicant be untrue, or if the specification and drawings contain more or less than is necessary for obtaining the end for which they purport to be made, such omission or addition being wilfully made for the purpose of misleading; but if it shall appear to the Court that such omission or addition is simply an involuntary error, and it is proved that the Patentee is entitled to the remainder of his Patent pro tanto, the Court shall render a judgment in accordance with the facts, and determine as to costs, and the Patent shall be held valid for such part of the invention described, and two office copies of such judgment shall be furnished to the Patent Office by the Patentee, one to be registered and to remain of record in the office, and the other to be attached to the Patent and made a part of it by a reference.

28. Every Patent granted under this Act shall be subject and expressed to be subject to the condition that such Patent and all the rights and privileges thereby granted shall cease and determine and the Patent shall be null and void, at the end of three years from the date thereof, unless the Patentee shall, within that period, have commenced and shall, after such commencement, carry on in Canada the construction or manufacture of the invention or discovery patented, in such manner that any person desiring to use it may obtain it or cause it to be made for him at a reasonable price at some manufactory or establishment for making or constructing it, in Canada, and that such patent shall be void if after the expiration of eighteen months from the granting thereof, the patentee or his assignee or assignees for the whole or a part of his interest in the Patent, imports or causes to be imported into Canada, the invention or discovery for which the Patent is granted.

29. Any person desiring to impeach any Patent issued under this Act, may obtain a sealed and certified copy of the Patent and of the petition, declaration, drawings and specification thereunto relating, and may have the same filed in the Office of the Prothonotary or Clerk of the Superior Court for the Province of Quebec, or of the Court of Queen’s Bench or Common Pleas for the Province of Ontario, or of the Supreme Court in the Province of Nova Scotia, or of the Court of Queen’s Bench in the Province of New Brunswick, according to the domicile elected by the Patentee as aforesaid, which Court shall adjudicate on the matter and decide as to costs; the Patent and documents aforesaid shall then be held as of record in such Court, so that a Writ of Scire Facias under the Seal of the Court grounded upon such record may issue for the repeal of the Patent, for legal cause as aforesaid, if upon proceedings had upon the Writ in accordance with the meaning of this Act the Patent be adjudged to be void.

30. A certificate of the judgment voiding any Patent shall, at the request of any person or party filing it to be of record in the Patent Office, be entered on the margin of the enrolment of the Patent in the Office of the Commissioner, and the Patent shall thereupon be and be held to have been void and of no effect, unless and until the judgment be reversed on appeal as hereinafter provided.

31. The judgment declaring any Patent void shall be subject to appeal to any Court of Appeal having appellate jurisdiction in other cases over the Court by which the same was rendered.

Patents Issued Under Former Laws

32. All patents issued under any Act of the Legislature of the late Province of Canada, or of Nova Scotia or of New Brunswick, and all Patents issued for the Provinces of Ontario and Quebec under the Act of the late Province of Canada, to the date of the coming into operation of the present Act, shall remain in force for the same term, and for the same extent of territory, as if the Act under which they were issued had not been repealed, but subject to the provisions of this Act in so far as applicable to them:

(2) And it shall be lawful for the Commissioner, upon the application of the patentee named in any such patent, being the inventor or discoverer of the subject matter of the patent and a British subject, or a resident in any Province of Canada for upwards of a year, if the subject matter of the patent has not been known or used nor with the consent of the patentee on sale in any of the other Provinces of the Dominion, to issue on payment of the proper fees in that behalf a patent under this Act extending such Provincial patent over the whole of the Dominion, subject to the provisions of the seventeenth section; but no patent so issued shall extend beyond the remainder of the term mentioned in the Provincial Patent.

33. All the records of the Patent Offices of the late Province of Canada, and of the Provinces of Ontario and Quebec, of Nova Scotia and New Brunswick, shall be handed over by the officers in charge of them to the Commissioner of Patents of invention or discovery to form part of the records of the Patent Office for the purposes of this Act.

Tariff of Fees

34. The following fees shall be payable to the Commissioner before an application for any of the purposes hereinafter mentioned shall be entertained, that is to say:

35. For every copy of drawings the party applying shall pay such sum as the Commissioner considers a fair remuneration for time and labour expended thereon by any officer of the department or person employed to perform such service.

36. The said fee shall be in full of all services performed under this Act, in any such case by the Commissioner or any person employed in the patent office.

37. All fees received under this Act shall be paid over to the Receiver General and form part of the Consolidated Revenue Fund of Canada, except such sums as may be paid for copies of drawing when made by persons not receiving salaries in the patent office.

38. No fee shall be made the subject of exemption in favor of any person; and no fee, once paid, shall be returned to the person who paid it, except

1. When the invention is not susceptible of being patented;
2. When the petition for a patent is withdrawn and in every such case the Commissioner may return one half of the fee paid;

And in the case of withdrawal a fresh application shall be necessary to revive the claim, as if no proceeding had taken place in the matter.

Miscellaneous Provisions.

39. An intending applicant for a Patent who has not yet perfected his invention or discovery and is in fear of being despoiled of his idea, may file in the Patent Office a description of his invention or discovery so far, with or without plans, at his own will; and the Commissioner, on reception of the fee hereinbefore prescribed, shall cause the said Document to be preserved in secrecy, with the exception of delivering copies of the same whenever required by the said party or by any judicial tribunal–the secrecy of the document to cease when he obtains a Patent for his invention or discovery; and such document shall be called a caveat; provided always that if application shall be made by any other person for a patent for any invention or discovery with which such caveat may in any respect interfere, it shall be the duty of the Commissioner forthwith to give notice by mail to the person who has filed such caveat, and such person shall within three months after the date of mailing the notice, if he would avail himself of the caveat, file his petition and take the other steps necessary on an application for patent; and if in the opinion of the Commissioner the applications are interfering, like proceedings may be had in all respects as are by this Act provided in the case of interfering applications; Provided further that unless the person filing any caveat shall within four years from the filing thereof have made application for a patent, the caveat shall be void.

40. The Commissioner may object to grant a Patent in the following cases:

1. When he is of opinion that the alleged invention or discovery is not patentable in law;
2. When it appears that the invention or discovery is already in the possession of the public with the consent or allowance of the inventor;
3. When it appears that the invention or discovery has been described in a book or other printed publication before the date of the application; or otherwise in the possession of the public;
4. When it appears that the invention or discovery has already been patented except, however, when the case is one within the seventh section of this Act; or one in which the Commissioner has doubts as to whether the patentee or the applicant is the first inventor or discoverer.

41. Whenever the Commissioner objects to grant a patent as aforesaid, he shall notify the applicant to that effect and shall state the ground or reason therefor with sufficient detail to enable the applicant to answer, if he can, the objection of the Commissioner.

42. Every applicant who has failed to obtain a Patent by reason of the objection of the Commissioner as aforesaid, may at any time within six months after notice thereof has been addressed to him or his agent, appeal from the decision of the Commissioner to the Governor in Council.

43. In cases of interfering applications for any Patent, the same shall be submitted to the arbitration of three skilled persons, one of whom shall be chosen by each of the applicants, and the third person shall be chosen by the Commissioner, or by his Deputy or the person appointed to perform the duty of that Office; And the decision or award of such Arbitrators, or any two of them, delivered to the Commissioner in writing, and subscribed by them, or any two of them, shall be final as far as respects the granting of the Patent:

(2) If either of the applicants refuses or fails to choose an Arbitrator, when required to do so by the Commissioner, the Patent shall issue to the opposite party; And when there are more than two interfering applicants, and the parties applying do not all unite in appointing three Arbitrators, the Commissioner or his Deputy, or person appointed to perform the duty of that office, may appoint the three Arbitrators for the purposes aforesaid.

44. All specifications, drawings, models, disclaimers, judgments and other papers, except caveats, shall be open to the inspection of the public at the Patent Office, under such regulations as may be adopted in that behalf.

45. Clerical errors happening in the framing or copying of any instrument of the Patent Office, shall not be construed as invalidating the same, but when discovered they may be corrected under the authority of the Commissioner.

46. In case any Letters Patent shall be destroyed or lost, others of the like tenor, date and effect may be issued in lieu thereof, on the party paying the fees hereinbefore prescribed for office copies of documents.

47. No Letters Patent shall extend to prevent the use of any invention or discovery in any foreign ship or vessel, where such invention or discovery is not so used for the manufacture of any goods to be vended within or exported from Canada.

48. Every person who before the issuing of a Patent has purchased, constructed or acquired any invention or discovery for which a Patent has been obtained under this Act, shall have the right of using and vending to others, the specific art, machine, manufacture or composition of matter patented, so purchased, constructed or acquired before the issue of the Patent therefor, without being liable to the Patentee or his representatives for so doing; but the Patent shall not be held invalid as regards other persons by reason of such purchase, construction or acquisition or use of the invention or discovery by the person first aforesaid, or by those to whom he may have sold the same, unless the same was purchased, constructed or acquired or used for a longer period than one year before the application for a patent therefor.

49. Every Patentee under this Act, shall stamp, or engrave on each patented article sold or offered for sale by him, the year of the date of the Patent applying to such article, thus: “Patented 1869,” or as the case may be; and any such patentee selling or offering for sale any such Patented article not so marked, shall be liable to the punishment of a fine not to exceed one hundred dollars, and, in default of the payment of such fine, to imprisonment not to exceed two months.

50. Whosoever writes, paints, prints, moulds, casts, carves, engraves, stamps or otherwise marks upon any thing made or sold by him, and for the sole making or selling of which he is not the Patentee, the name or any imitation of the name of any Patentee for the sole making or selling of such thing, without the consent of such Patentee–or without the consent of the Patentee writes, paints, prints, moulds, casts, carves, engraves, stamps, or otherwise marks upon any thing not purchased from the Patentee, the words, “Patent”, “Letters Patent,” “Queen’s Patent,” “Patented,” or any word or words of like import, with the intent of counterfeiting or imitating the stamp, mark or device of the Patentee, or of deceiving the public and inducing them to believe that the thing in question was made or sold by or with the consent of the Patentee, shall be deemed to have committed a misdemeanor, and shall on conviction be punished therefor by fine or by imprisonment or both, in the discretion of the Court before which the conviction shall be had; but the fine shall not exceed two hundred dollars, nor shall the imprisonment exceed three months.

51. Any person wilfully making or causing to be made any false entry in any register or book, or any false or altered copy of any document relating to the purposes of this Act, or who shall produce or tender any such false or altered document knowing the same to be such, shall be guilty of a misdemeanor, and shall be punished by fine and imprisonment accordingly.

52. Chapter thirty-four of the Consolidated Statutes of the late Province of Canada, respecting Patents for Inventions–Chapter one hundred and seventeen of the Revised Statutes of Nova Scotia, (third series),–Chapter one hundred and eighteen of the Revised Statutes of New Brunswick, and any Act amending any of the said Chapters, or any other Act, are herby repealed, in so far as they or any of them may be inconsistent with this Act, or make any provision in any matter provided for by this Act, except only as respects all rights acquired and penalties or liabilities incurred under the said laws or any of them, before the coming into force of this Act.

53. When citing this Act it shall be sufficient to call it “The Patent Act of 1869.”

54. This Act shall commence and take effect on the first day of July, 1869.