Patents

7. Allowance, Payment of the Final Fee, and Issuance of the Patent

If an application is considered by an Examiner to be acceptable, he will issue a Notice of Allowance. In Canada and the United States, this notice provides for the payment of a final or issue fee to issue the patent and bring the patent rights into force. In both Canada and the United States, the amount of this fee depends upon whether the applicant is entitled to claim "small entity status," If the applicant is not a small entity, then the government fee is double that payable by a small entity. An independent inventor who has not assigned or licensed his invention to a large company will be entitled to small entity status. Because of the length of time that is normally involved in the prosecution of a patent application, either in Canada or the United States, a final fee may not be payable on an application for up to two or more years after the application has been filed. The initial estimate provided by an agent as to the cost of preparing and filing a patent application does not normally include subsequent charges for prosecution of the application through to allowance, nor the cost of paying the final or issue fee. When comparing estimates from different agents, be sure of whether a particular agent's estimate includes these subsequent charges, as they can be significant.

Patent applications in the United States are typically in the prosecution phase from about 18 months to 24 months, absent appeals from Examiner's decisions. Once a patent issues in the United States, the owner of the patent is granted exclusivity in the subject invention for a period of twenty (20) years from the date of the filing of the United States application. This time frame reflects a recent change to the U.S. patent law. Previously, United States patents were valid for a period of seventeen (17) years from the date on which the patent issued. Presently, there are transitional provisions in effect which will grant patents for the longer of 20 years from filing or 17 years from issuance in respect of applications which were filed prior to June 8, 1995. This recent change has been implemented to bring the U.S. patent law in line with the provisions of other countries, including Canada.

In Canada, the average pendency period is about three to four years from filing the request for examination. Once a Notice of Allowance is received from the Canadian Intellectual Property Office and the issuance fee is paid, a patent will issue for a period of twenty years from the date on which the application was filed in Canada.