Canada’s due care standard in patent law imposes a strict and highly scrutinized requirement on applicants and agents seeking reinstatement after missed deadlines. Introduced following 2019 legislative changes, the standard requires proof that all reasonable steps were taken to avoid the failure, both before and after missing a deadline. Courts and the Canadian Intellectual Property Office have consistently reinforced that this is a high threshold, with only a small percentage of cases meeting the standard. Key expectations include proactive communication, redundancy in contact methods, and shared responsibility among all authorized parties. Simply claiming that an error was unintentional is insufficient.
In Canadian patent law, the “due care” standard is a relatively new and elevated requirement that applies when seeking reinstatement of an application or patent that has been deemed abandoned or deemed expired for failure to meet certain deadlines, such as the payment of maintenance (annuities) fees. In essence, an applicant must establish that it took all reasonable steps that a prudent applicant would have taken to avoid the missed deadline—an objective and highly fact-specific test grounded in section 73 and 46 of the Canadian Patent Act.
Recent jurisprudence, particularly Matco Tools Corporation v Canada (Attorney General), 2025 FC 118(Matco Tools) and Taillefer v Canada (Attorney General), 2024 FC 259, has clarified and, in practice, tightened the application of this standard in the context of missed maintenance fees; that it is not sufficient to show that the omission was merely unintentional. The Federal Court of Canada initially emphasized that a proper due care analysis must consider the entire chain of events, including any “root cause” errors preceding the final missed deadline; however, the Canadian Federal Court of Appeal ultimately restored a stricter approach, reinforcing that failures in communication, internal systems, or oversight will generally defeat a due care argument. The Federal Court of Appeal has confirmed that “due care” is a strict, objective, and evidence-driven test, requiring detailed proof of a reliable docketing system for tracking deadlines, appropriate supervision, and prompt corrective action once an error is identified.
Essentially, Canadian law requires that all authorized parties involved—applicant, foreign counsel, Canadian agent, and even third-party annuity providers—must each demonstrate due care. Both the applicant and its patent agent are expected to take proactive and redundant steps, such as maintaining reliable docketing systems, ensuring effective communication channels (including alternative contact methods), and actively verifying that critical notices are received and acted upon. In Taillefer v Canada (Attorney General), 2024 FC 259, for example, the Court accepted that due care may require agents to go beyond routine email reminders and use alternative communication methods, while applicants themselves must ensure that their internal systems and communication channels remain effective.
For anyone dealing with Canada’s stringent due care requirements under the Patent Act, early coordination is essential. Field Law would be happy to assist with any questions or issues that may arise.
