Following last year’s public consultation, rules regarding “green technology” patents have changed. As of March 3, 2011, Canada’s Patent Act allows expedited examination of “green technology” applications.
The amendments alter the prior expedited examination regime permitting expedited examination “if the applicant files with the Commissioner a declaration indicating that the application relates to technology the commercialization of which would help to resolve or mitigate environmental impacts or to conserve the natural environment and resources” (Section 28(1)(b), Patent Rules).
The benefits of using this expedited process include:
1. No fee to advance the application;
2. No requirement to establish prejudice in order to advance the application;
3. Service according to the published service levels (currently within two months) to ensure a faster examination, and hopefully, faster issuance of a patent in Canada. This may permit faster enforcement proceedings, and is expected to help speed up commercialization.
These benefits are tempered, however, by the strategic advantage of having foreign applications in larger jurisdictions prosecuted first. While the Canadian Patent Office may accept a foreign ruling on patentability, the foreign jurisdiction is unlikely to accept the Canadian Patent Office’s determinations (resulting in different claims in different jurisdictions and higher prosecution fees). Advice should be sought before deciding whether to take advantage of this “green technology” expedited process.