Canada’s Patent Term Adjustment (PTA) process came into effect at the beginning of 2025 to compensate patentees for unreasonable administrative delays during prosecution. Despite its laudable goal, our early analysis of the PTA framework suggested that there would be relatively few cases where PTA would be available in Canada. See our previous PTA discussions:

However, the Canadian patent office has been experiencing significant administrative and processing delays due to its recent modernization project and launch of its new MyCIPO Patents portal. These delays have been prejudicial to patentees, with examination stalled and even routine administrative procedures like patent issuance taking significantly longer than ever before.

For example, a comparison of the Canadian patent office’s previous and current service standards for sending Official Actions, and issuing patents after the final fee had been paid, highlights the significant increase in administrative processing time:

Administrative step

2024-2025 Processing target

Current processing target

Administrative target to address patentee comments and issue subsequent Official Action

7-10 months, depending on the technology

13-16 months, depending on the technology

Administrative target to issue patent after payment of final fee

16 weeks

36 weeks

These delays at the patent office are causing patent grant timelines to grow substantially, an effect that is further amplified when multiple Office Actions are issued. Moreover, many Canadian patent applications remain in limbo more than a year after the final fee was paid – far exceeding the 36-week service standard for this routine administrative step.

While these administrative delays are highly prejudicial to patentees, some patentees may be able to recover some of this lost patent term through the PTA process. Previously, PTA was expected to be uncommon because most applications advanced within CIPO’s allotted processing windows of three years from the request for examination (or five years from the filing/national entry date). However, with the Patent Office’s significant increase in administrative processing timelines, more patents are likely to qualify for PTA than initially anticipated.

The following hypothetical scenario explains the possibility of PTA by comparing processing timelines based on CIPO’s previous service standards and their current, much slower, service standards:

Event

Previous service standards and targets

Current service standards and targets

Application filing date

N/A – Dec 2020

N/A – Dec 2020

Request for examination date

N/A – Dec 2023

N/A – Dec 2023

First office action after request for examination

(CIPO delay)

17 months – May 2025

17 months – May 2025

Response to first action

(Applicant delay)

4 months – Sep 2025

4 months – Sep 2025

Second office action

(CIPO delay)

10 months – Jul 2026

16 months – Jan 2027

Response to second action

(Applicant delay)

4 months – Nov 2026

4 months – May 2027

Notice of allowance

(CIPO delay)

10 months – Sep 2027

16 months – Sep 2028

Issue fee payment

(Applicant delay)

4 months – Jan 2028

4 months – Jan 2029

Patent issuance

(CIPO delay)

3 months – Apr 2027

9 months – Oct 2029

Total CIPO delay

40 months

58 months

Total applicant delay

12 months

12 months

PTA calculation (CIPO delay – 36 months – Applicant delay)

40 - 36 - 12 < 0

No PTA

58 - 36 - 12 = 10

PTA of 10 months

While the ideal outcome would be a prompt return to the “normal” administrative processing timelines, and the absence of processing delays, Canadian patentees should make note of their patent applications with filing or national entry dates after December 1, 2020, to consider if the PTA process can be used to recapture some amount of otherwise lost patent term due to the ongoing administrative delays at the Patent Office.

Gowling WLG has many professionals with significant experience with the Canadian Patent Office, and can assist with the identification, calculation, and submissions surrounding the PTA process. If you have questions about the PTA process or how these delays may affect your patent rights, please connect with your Gowling WLG IP professional for more information.