I’ve updated my list of recently issued “Old Act” patents – three issued so far in 2013.  These were filed prior to October 1989 but can expire 17 years from this year’s issue date.

My list of Old Act patents contains a list of patents that issued recently but were filed prior to October 1, 1989 under the first-to-invent “Old” Patent Act. Most of the Old Act patents granted now were held up by conflict proceedings – a determination of which applicant first invented the claimed subject matter first. The applications that issued this year were in prosecution for over 25 years. See Justice Hughes decision in Mycogen Plant Science, Inc. v. Bayer Biosciences N.V., 2010 FC 124 for some background on conflict proceedings.

According to my data, the following number of “Old Act” patents were issued:

• 2013 – 3 (year to date, as of June 24)
• 2012 – 5
• 2011 – 16
• 2010 – 10

See my list of Old Act Patents for the patent numbers and titles.

Apparently there are about 30 Old Act patent applications still pending at the Canadian Patent Office.

Old Act Patents in Litigation

Because the expiry date of these patents is based on the issue date, not the filing date (as for applications filed since October 1, 1989), they could be enforced for many years.

One of the Old Act patents that issued earlier this year was added to Health Canada’s Patent Register when it issued after over 29 years in prosecution. [The longest time in prosecution that I am aware of is over 42 years for a national defense patent issued in 2007 but filed in 1965.]

So far this year, 5 patent infringement or proceedings under the PM(NOC) Regulations were started that included reference to Old Act patents. In 2012, 23 proceedings were started that referred to Old Act patents.

I’m not aware of any ongoing conflict proceedings in Federal Court, but if there are, please let me know.