REGISTERED
April 26, 1985
Ridout & Maybee
2300 Richmond-Adelaide Centre
101 Richmond St. W.
Toronto, Ont. M5H 2J7
Application No: 396,905
Date Filed: Feb. 23, 1982
Title: Drug Administration Device
Dear Sir,
Applicant requested by letter dated March 22, 1985 that this applic-
ation be considered by the Patent Appeal Board for the purpose of
setting a time for the commencement of an action under Section 63(2).
The Patent Appeal Board has considered the request and has advised
me as follows:
The Canadian patent cited by the examiner, 1,173,795
issued on September 4, 1984, i.e. after the filing of
applicant's application.
Included in Section 63(2) is the following provision:
...an application for a patent for an invention
for which a patent has already issued under this
Act shall be rejected...
Section 63(2) has been dealt with in the decision in re
Fry 1 C.P.R. p.135 where it was found the provisions of
S63(2) "...extend only to the case of an application filed
after the issue of another patent disclosing or claiming
the same invention..."
In view of applicant's filing date which is before the
issue of Canadian patent 1,173,795, S63(2) dies not set
out any provisions under which the Commissioner may take
any action on this application, including setting a time
for applicant to commence an action in the Federal Court.
Consequently the Board recommends that the Commissioner
does not set a time for the applicant to commence an
action to set aside the patent. The application should
be returned to the examiner for normal prosecution.
I agree with the recommendations of the Board, accordingly I do not
reject this application under Section 63(2) and I do not set a time
within which Applicant should commence an action in the Federal Court.
The application will be returned to the examiner for normal prosecu-
tion.
Yours truly
J.H.A Gari‚py
Commissioner of Patents