On June 21, 2023, Rules Amending the Patent Rules were published in the Canadian Gazette, Part II[1] (the “Amendments”), which will result in significant increases in most of the patent fees. The Canadian Intellectual Property Office (CIPO) has not substantially adjusted its fees since 2004, leading to a position of financial instability. The goal of the Amendments is to allow CIPO to address its current structural deficit situation and adjust for inflation. These fee adjustments will come into force on January 1, 2024.
CIPO is maintaining the current fee structure. The main change with the Amendments is the increase of the majority of fees by 25% above the January 2024 inflation adjustment. Some fees that came into force on October 3, 2022, will be subjected to a lower percentage increase. For example, the excess claims fees recently introduced will only be subjected to a 10% increase. However, the request for continued examination (RCE) fee will be adjusted to the same as the request for examination fee, which is affected by the 25% increase. As well, to lessen the administrative burden, fee amounts have been rounded off to the nearest dollar. Some of the standard fee changes can be seen below.
| Current Cost ($) | New Cost Jan 1, 2024 ($) | |
| Application Fee | 421.02 | 555 |
| Examination Fee | ||
| Basic Fee | 816 | 1110 |
| Fee for each claim in excess of 20 claims | 100 | 110 |
| Continued Examination Fee (RCE) | 816 | 1110 |
| Final Fee | ||
| Basic Fee | 306 | 416 |
| Fee for each page of specification and drawings in excess of 100 pages | 6.12 | 8 |
| Fee for each claim in excess of 20 claims | 100 | 110 |
A second important change in the Amendments is the expansion of the definition of “small entity” in the Patent Rules. Currently, small entities are defined as entities that have 50 or less employees at the time of filing the patent application or are a university, and that are not controlled directly or indirectly by a large entity or have not transferred or licensed to a large entity or have an obligation to do so.[2] The Amendments coming into force on January 1, 2024 will allow more businesses to be eligible for the small entity status, as the definition has been amended to change the number of employees from 50 or less, to fewer than 100 employees. This definition has been changed to align with the Treasury Board of Canada Secretariat and Innovation, Science and Economic Development Canada’s definitions. Additionally, although there will be a fee increase, the small entity fees will not be subjected to the standard increase of 25%. Some of the small entity fee changes can be seen below.
| Current Cost ($) | New Cost Jan 1, 2024 ($) | |
| Application Fee | 210.51 | 225 |
| Examination Fee | ||
| Basic Fee | 408 | 450 |
| Fee for each claim in excess of 20 claims | 50 | 55 |
| Continued Examination Fee (RCE) | 408 | 450 |
| Final Fee | ||
| Basic Fee | 153 | 169 |
| Fee for each page of specification and drawings in excess of 100 pages | 6.12 | 8 |
| Fee for each claim in excess of 20 claims | 50 | 55 |
The amendments also include other “housekeeping” amendments to the Patent Rules, such as late fees under the Patent Cooperation Treaty and technical amendments to further explain the application of the Patent Rules introduced on October 3, 2022.
In view of the significant fee increases, Applicants may wish to take advantage of the lower 2023 rates before the new fees are implemented. Although there is still uncertainty as to the possible interpretation of “controlled directly or indirectly”, Applicants with a business of more than 50 but fewer than 100 employees may wish to consider whether to claim small entity, in order to take advantage of the discounted patent fees.