Patent applications are filed, work their way through the patent office, some are granted and after twenty years, they expire. How many patents are actually granted, and now many make it to expiry?
I tracked the 42,000 or so patent applications filed in Canada with a 2001 filing date. All of these patents expired by the end of 2021. Overall, about 43% of the original applications were granted, about 18,000. About 105 were involved in litigation in the Federal Court.
Only about 17% of the original patent applications were granted and still enforceable in 2021 when they expired. About 30% were in force at the ten year mark which shows that while a few more patents were granted after more than 10 years at the patent office, patent owners decided not to pay the maintenance fees. During the life of a patent application or patent, annual maintenance fees must be paid to keep the patents or patent applications in good standing. If the fees are not paid, the patents or patent applications are considered abandoned.
Canada also allows ‘Certificates of Supplemental Protection’ (see earlier column) that can effectively extend the term of certain pharmaceutical patents by up to two years. Only one patent with a 2001 filing date was subject to a request for a Certificate of Supplemental Protection but the request was refused.
Not all of the 42,000 patent applications were actually filed with the Canadian patent office in 2001. About 60% of the patent applications were filed as PCT patent applications and only entered the ‘national phase’ in Canada up to 42 months after they were filed. In addition, some ‘divisional’ applications were filed later in the process based on parent applications filed in 2001 and were deemed to have a 2001 filing date – I counted about 1500 divisional applications.
The following graph is based on the Canadian Patent Office data for the 41,638 patent applications with a 2001 filing date. Incoming PCT applications (green) become pending applications (navy blue). Under the rules at the time, a request for examination had to be filed no later than five years from the filing date and the applications would enter examination (yellow). Even after 20 years, a few applications were still in examination until they expired. Most applications were abandoned without being granted (red), because annual maintenance fees were not paid, the applicant never requested examination, a response was not filed to a patent office requisition or the application was rejected during examination.
Granted patents (pink) would continue to be in-force if annual maintenance fees were paid. Patents that were abandoned after granted (cyan) increased over time if annual fees were not paid.What happened with the granted patents? I located 105 or so that were subject to litigation in the Federal Court.
There were six impeachment proceedings where a third party challenged the validity of a granted patent. One proceeding resulted in a patent being declared invalid for being obvious but the others were settled or discontinued.
Fifty patents were enforced in patent infringement proceedings. One was found valid and infringed (see T-2025-11) and the patent was found invalid in one case (see T-1043-12) but there are at least five proceedings still ongoing. In two cases, the patents were found invalid at trial but there is a pending appeal. The remainder of the proceedings were settled or discontinued.
Thirty two patents were the subject of one or more proceedings under the Patented Medicines (Notice of Compliance) Regulations, at least six of which are still ongoing. In a couple of cases the patents were found invalid. Most of the proceedings were resolved without a final judgment by the Court.
Eighteen patents were considered in other types of proceedings, including judicial reviews of patent office procedures, corrections of inventorship or title, and related proceedings.
Even if patents are not enforced in the Federal Court, they can still bring significant value to patent owners, such as through licensing and royalties, as security for financing or through the actions of competitors who respect the granted patent rights. This snapshot of patent applications with a 2001 filing date show what happens to the 42,000 or so patent applications that were filed.