2.23.5.1 Granting Leave to Amend

Date Published

Note: Only examiners with the acceptance delegation have a delegation to grant leave to amend and allow amendments under sec 104.  The exceptional circumstances applying to the granting of leave to amend under sec 6(c) (micro-organism deposit requirements) are outlined in 2.23.5.4 Allowing Amendments Upon Acceptance of a Patent Request and Complete Specification.

As a precursor to allowing amendments to a patent request, complete specification or other filed document, the Commissioner must grant leave to amend.

Subregulation 10.5(1) specifies several requirements for leave to be granted, namely:

  • a report under reg 10.2(1) cannot be adverse;

  • in the case of proposed amendments in anticipation of, or in response to, an examination report in respect of a standard patent, the amendments must be considered to remove all lawful grounds of objection to the request or specification; and

  • in the case of proposed amendments in anticipation of, or in response to, an examination report in respect of an innovation patent, the amendments must be considered to remove all lawful grounds for revocation of the innovation patent.

For granted standard patents, examiners should also check for a statement that no relevant proceedings are pending (see 2.23.3.5 Relevant Proceedings Pending).

Once leave to amend has been granted, that decision cannot be reversed other than in exceptional circumstances (see 2.23.5.6 Revocation of Leave to Amend).