Celltech Ltd. v. Canada ( Commissioner of Patents )
T-224-92
MacKay J.
1/2/93
24 pp.
S. 18 application for certiorari to quash respondent's decisions refusing request for entry into national phase for registration of International Application PCT/GB90/02017 and for mandamus to require respondent to consider applicant's request for correction of clerical error in Application under Patent Act, s. 8[cad 211]Construction of Patent Cooperation Treaty (PCT) in accord with Canadian law at issue -- Application relating to invention entitled Humanised Antibodies -- Application for patent filed December 21, 1989 in United Kingdom patent office on behalf of applicant (Celltech) -- International Application filed December 21, 1990 in same office under PCT -- Celltech's patent agents failing to designate Canada among countries in which national registration would be pursued on basis of Application -- Commissioner of Patents refusing to grant applicant's request for national entry for International Application as lacking authority under PCT, art. 25, 26 -- Receiving Office of British Patent Office declining to rectify application form by designating Canada -- Application for judicial review by High Court of Justice denied -- Requirements for entry into national phase of international application not met herein as application not designating Canada -- Requirements set by Patent Cooperation Treaty Regulations, s. 7 not met -- Neither Treaty and regulations nor Act and regulations applying to Celltech's Application as submitted to Patent Office -- No basis for finding error in law in Commissioner's decision -- Meaning of "obvious errors" under PCT regulations, R. 91.1 narrower in scope than "clerical errors" in Patent Act, s. 8 -- Extrinsic evidence admissible to establish clerical error under s. 8, error need not be obvious from face of document -- General rule for construction of treaties requiring appropriate attention to terms of treaty in context and to objects and purpose -- PCT, art. 26 not authority for Canadian Patent Office to resort to Patent Act, s. 8 to correct error, even if clerical error -- Failure to designate Canada comparable, in case of national application, to failure to file Application -- Patent Act, s. 8 not authority for rectifying Application by Canadian Patent Office -- Treaty, Act and regulations no basis for Commissioner of Patents to consider Celltech's Application for entry into national phase under Treaty -- Application dismissed -- Patent Cooperation Treaty, Can. T. S., No. 22, art. 25, 26 -- Patent Act, R.S.C., 1985, c. P-4, ss. 8, 12 -- Patent Cooperation Treaty Regulations, SOR/89-453, ss. 6, 7.