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To compensate for delays in the issuance of Canadian patents, the Canadian Intellectual Property Office (CIPO) has, as of December 2, 2025, implemented a Patent Term Adjustment (PTA) system. The likelihood that a patent application qualifies for any term adjustment depends on several factors, though certain strategies can be implemented by the applicant to increase that likelihood.

Eligibility Requirements

To be eligible, a Canadian patent must meet all of the following requirements:

1. The application was filed on or after December 1, 2020;
2. The patent issued on or after December 2, 2025; and
3. The date of grant is both:
   1. Five years from the applicable start date (e., national phase entry date for PCT applications, the filing date for a Paris Convention application or Canadian filing, or the presentation date for a divisional application); and
   2. Three years from the examination request date.

Increasing Chances of Obtaining PTA

Several factors affect the odds of a patent obtaining PTA, most of which relate to the CIPO’s own standards for processing a patent application (and the acknowledgment of possible delays). The CIPO calculates PTA by the period of time the application spends with CIPO for examination. If the amount of time the CIPO spends processing an application exceeds its own standard, PTA may be available.

Knowing what circumstances affect the PTA calculation is crucial, as the CIPO PTA Rules operate under a "chess clock" philosophy: if the application spends significant time in the CIPO’s hands, the likelihood of PTA adjustment increases. Alternatively, if there are applicant-induced delays, that time is subtracted from any time the CIPO would consider to be an overage on its part, greatly reducing the likelihood that meaningful PTA will be granted.  

In order to maximize the opportunity for PTA, an applicant should consider implementing one or more of the following strategies:

1. Defer examination. Deferred examination requests can impact the CIPO’s "clock" and increase the likelihood of PTA. If an examination is requested more than two years from the application start date, the CIPO’s prosecution timeline for examining a patent application changes from five years to three years. This three-year timeline improves the odds that PTA will be accumulated due to processing delays by the CIPO. Thus, even waiting to request examination at two years plus one day from the start date can impact PTA.
2. Pay maintenance fees on time. Timely payment of maintenance fees will keep the "clock" running. The CIPO does not consider any period of time between a missed maintenance fee and its later payment a delay attributed to the CIPO, even if the application is in their hands. Thus, missing payment of the maintenance fee pauses the clock for accruing PTA.
3. Consider making early amendments. Under PTA Rules, the CIPO subtracts the period of time between the filing of the first RCE and the date the final issue fee is paid from the PTA calculation, thus effectively ending any PTA accrual due to the general length of time the patent will be reopened for prosecution. As such, to maximize PTA and decrease the likelihood of an RCE, making amendments to the application early in prosecution may prove beneficial.

Applying for PTA

The CIPO requires applicants who desire PTA calculations to submit a fee (currently about CAD $2,570) within three months of the date of grant. At that point, the CIPO will make a preliminary determination regarding whether PTA will be granted. After the preliminary determination is made, a patentee has two months to submit observations to which the CIPO will respond with a final determination. If the patentee disagrees with the CIPO’s final determination, a judicial review must be requested within 30 days of the final determination.

As long as the patent remains in force at the time of expiration of its 20-year term and if a certificate of PTA has issued, the PTA will begin on the expiry. Annual maintenance fees of CAD $1,000 are required to be paid during the PTA.

Conclusion

Due to the 36-month minimum time limit the CIPO has to carry out patent prosecution before incurring any overages of time that contribute to PTA calculations, and due to potential applicant-incurred delays that may reduce said calculation, it is unlikely many applications will benefit from the new PTA Rules. Moreover, even if a patent qualifies for PTA, the CIPO’s published performance targets and customary processing times suggest that any PTA is likely to be minimal and may not be  worthy of the fees associated with the PTA application process. Furthermore, in some technology spaces, an applicant may devalue the second half of the patent’s life compared to the first half. However, your patent attorney can assist you in carrying out a preliminary calculation and discuss whether a PTA application may be beneficial in your particular situation.

The attorneys at Calfee, Halter and Griswold are happy to answer any questions your company might have related to the Canadian Intellectual Property Office's Patent Term Adjustment (PTA) system.

Calfee has one of the largest Intellectual Property practices within a general practice firm in the Midwest. Of the 40+ skilled attorneys, patent agents, and paralegals in Calfee's Intellectual Property practice, more than 30 are registered to practice before the U.S. Patent and Trademark Office. Calfee has nearly 25,000 active patents and trademarks on its dockets, more than 15,000 of which are international. The IP team has handled filings in 190+ countries and has broad experience and a deep bench in prosecution, litigation, opinions, IP business strategy, and counseling.

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