Patent Term Adjustment in Canada – Info Sheet
Background
To comply with international obligations under the Canada-United States-Mexico Agreement (CUSMA), which came into force on July 1, 2020, Canada has amended the Patent Act and Patent Rules to introduce patent term adjustment (PTA) to compensate patentees for unreasonable delays attributable to the Canadian Intellectual Property Office (CIPO). Although these amendments took effect on January 1, 2025, only patents granted on or after December 2, 2025 will be eligible for PTA, provided the requirements outlined below are satisfied. Based on historical prosecution timelines, it is expected that fewer than 1% of Canadian patents will qualify for additional term through a request for PTA.
Eligibility Requirements
A Canadian patent may qualify for PTA if it issued on or after December 2, 2025 and has a filing date on or after December 1, 2020.
In addition, the Canadian patent must have issued after the later of:
- 3 years from the date of the request for examination, and
- 5 years from the patent’s “applicable day”, which is:
- for Patent Cooperation Treaty (PCT) applications, the Canadian national entry date;
- for divisional applications, the presentation date; and
- for any other application, the filing date.
Additional Term Duration
The amount of additional term is calculated using the following formula:
- The number of days from the later of 3 years from the date of the request for examination and 5 years from the patent’s applicable day to the issue date of the patent;
- MINUS the number of days to be subtracted.
The number of days to be subtracted is determined by adding together all days falling within the periods set out in section 117.03(1) of the Patent Rules. Common examples of periods that reduce patent term adjustment include the number of days needed to:
- Respond to a Notice of Non-Compliance (section 65 of the Patent Rules)
- Pay a maintenance fee on patent application after its due date (subsection 27.1(1) of the Patent Act)
- Request examination (section 35 of the Patent Act)
- Reinstate an abandoned application (subsection 73(1) or 73(2) of the Patent Act)
- Respond to an Examiner’s Report (subsection 86(2) of the Patent Rules)
- Respond to a Notice of Allowance (subsection 86(1) of the Patent Rules).
If a calendar day falls within two applicable periods, it is counted only once. The Commissioner will only grant additional patent term if the resulting calculation yields a positive number of days.
Requesting PTA
A patentee must submit a request for an additional patent term in writing within 3 months of the patent’s issue date. The request must include the prescribed fee, which in 2025 is $2,500.00 CAD for large entities and $1,000.00 CAD for small entities. This fee will increase slightly in 2026 to $2,567.50 CAD for large entities and $1,027.00 CAD for small entities.
If the application for additional term satisfies the requirements of the Patent Act, the Commissioner will issue a notice to the patentee setting out the Commissioner’s preliminary assessment of the number of additional days, if any.
This preliminary assessment reflects the calculation described above. The patentee then has 2 months from the date of the notice to submit observations regarding the preliminary determination. Any observations received will be taken into account when the Commissioner makes the final determination of the additional term.
The Commissioner’s determination regarding additional term will result in one of the following:
- a certificate of additional term specifying the number of additional days, or
- a dismissal of the application for additional term if the calculated duration is zero days or less.
A patentee may only apply for additional term once.
Maintaining a Patent During an Additional Term
Maintenance fees for Canadian patent applications are due annually, beginning on the second anniversary of the Canadian filing date or, for PCT applications, the international filing date. No maintenance fee is required for a patent for any period for which the maintenance fee for the underlying application has already been paid.
Annual maintenance fees will continue to be payable during any additional patent term for the 20th and each subsequent anniversary of the filing date of the application. The maintenance must include the prescribed fee, which in 2025 is $1,000.00 CAD for large entities and $400.00 CAD for small entities. This fee will increase slightly in 2026 to $1,027.00 CAD for large entities and $410.80 CAD for small entities.
If a maintenance fee during the additional term is not paid, the procedure for addressing the missed fee is the same as for a missed fee on an issued patent.
Author: Ian Goodman – Lawyer, patent & trademark agent
Firm: MILTONS IP
Country: Canada
