2017-09-03
Patents can be invaluable assets to the businesses and individuals who own them. They not only provide exclusive rights over an inventions but also provides the power to cease infringement. Patents also provide a benefit from growth and profitable opportunities. While many people obtain patents, they are clueless about the various aspects governing them. It results in them being unaware of their rights, especially when it comes to patent infringement. Like any law, the complexity of the subject of patents can result in several questions erupting in one’s mind. To provide you some clarity, here are some patent infringement related questions answered.
What Laws Govern And Affect Patents And Patent Litigation?
In Canada, Federal legislation governs all aspects related to patents and enforcement of rights in litigation. The Patent Act is the main body of the Federal legislation governing patent rights. While there might be several international treaties and conventions entered into by the Federal Government and incorporated into the Patent Act and other statutes, they play a secondary role to the Patent Act and court decisions. If there is any conflict between Canadian legislation and an international treaty obligation, the domestic legislation is given prime importance.
Details On The Court Systems In Relation To Patent Infringement
The nation has no special or dedicated patent court. If you think the Canadian Intellectual Property Office has some jurisdiction over infringement proceedings, think twice. In Canada, patentees can bring infringement actions before the Federal Court. Since patent invalidity issues are usually a part of infringement proceedings, they are also dealt by the Federal Court.
Now, you may ask if the courts are bound by opinions of other national or international courts or bodies. While the Federal Court does consider the decisions of other governing bodies for guidance, it is not bound by the opinions of other national or international courts. If you seek to file a patent infringement action, you can consult a patent lawyer with knowledge in the subject to do it on your behalf. These professionals can represent you before the Federal Court.
Queries Regarding Patent Infringement Proceedings – Assessment And Patent Invalidity.
Assessment of Infringement Litigation
The Patent Act grants the holder exclusive rights to produce, use, or sell the invention for the lifetime of the patent. The doctrine of equivalents, which is a US doctrine, does not apply in Canadian patent infringement proceedings. Since the patent claims determine the exclusive rights and protected aspects, they become one of the important bases of determining infringement. But, the question of whether or not an invention falls within the scope of claims and if there is infringement is dependent on the circumstances of each case. If the infringing activity has all the essential elements of the claim, then there is infringement, otherwise infringement is less likely.
Patent Invalidity
Trying to invalidate a patent is a common tactic for a defendant in infringement proceedings. While Canada is a first to file patent system, there are several other elements where patents can be invalidated. These grounds include obviousness, anticipation, double patenting, ambiguity, covetous claims, lack of sufficient disclosure while filing patents, lack of functionality or failure to meet the patent promise, unpatentable subject matter, and fraud on the patent office.
Is The Patent Holder The Only Person Eligible To Sue For Infringement?
The patentee, also known as the patent holder, as well as all persons claiming under the patentee can sue for patent infringement. The patentee is not necessarily an inventor. They could also be an assignee or a legal representative who can sue for infringement. A licensee and beneficiary can also sue for infringement and would fall under the category of persons claiming under the patentee. A license need not be registered to enforce this right.
While these were some questions to patent infringement answered, the subject and queries may not end here. Since the law is complex, it can be beneficial to hire a patent agent to assist you with patent related matters. From performing a patent search prior to drafting your patent application to potential infringement issues, a patent agent can provide you with guidance and knowledge when making the tough decisions.
