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Patent Act (R.S.C., 1985, c. P-4)

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Act current to 2021-10-07 and last amended on 2021-06-30. Previous Versions

Infringement (continued)

Marginal note:Limitation

 No remedy may be awarded for an act of infringement committed more than six years before the commencement of the action for infringement.

  • 1993, c. 15, s. 48

Marginal note:Burden of proof for patented process

 In an action for infringement of a patent granted for a process for obtaining a new product, any product that is the same as the new product shall, in the absence of proof to the contrary, be considered to have been produced by the patented process.

  • 1993, c. 2, s. 4, c. 44, s. 193

Marginal note:Exception — third party rights

  •  (1) This section applies only in respect of the following patents and certificates of supplementary protection that set out the following patents:

    • (a) a patent that was granted on the basis of an application

      • (i) in respect of which the prescribed fee referred to in subsection 27.1(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 27.1(3),

      • (ii) in respect of which a request referred to in subsection 35(2) was not made and the prescribed fee referred to in that subsection was not paid within the prescribed time referred to in that subsection, without taking into account subsection 35(4), or

      • (iii) that was deemed abandoned under paragraph 73(1)(a), (b) or (e), under paragraph 73(1)(f) as it read at any time before the coming into force of this subparagraph or under subsection 73(2);

    • (b) a patent that was granted on the basis of a divisional application that

      • (i) results, under subsection 36(2) or (2.1), from the division of an original application that is an application referred to in this paragraph or paragraph (a), and

      • (ii) was filed after the beginning of the period referred to in subsection (2) or, if it is earlier, the period referred to in subsection (3), that applies to the patent granted on the basis of the original application or that would apply to that patent if it were granted; and

    • (c) a patent in respect of which the prescribed fee referred to in subsection 46(2) was not paid on or before the applicable prescribed date referred to in that subsection, without taking into account subsection 46(3).

  • Marginal note:Act committed during period

    (2) If, during a period that is established by regulations made under paragraph 12(1)(j.74) that relates to a patent, a person, in good faith, committed an act that would otherwise constitute an infringement of that patent, that act is not an infringement of the patent.

  • Marginal note:Act committed after period

    (3) Subject to subsection (4), if — during a period established by regulations made under paragraph 12(1)(j.75) that relates to a patent — a person, in good faith, committed an act that would otherwise constitute an infringement of that patent or made serious and effective preparations to commit that act, it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the person commits the act after that period.

  • Marginal note:Transfer

    (4) If the act referred to in subsection (3) is committed or the preparations to commit it are made in the course of a business and that business, or the part of that business in the course of which the act was committed or the preparations were made, is subsequently transferred,

    • (a) subsection (3) or paragraph (b), as the case may be, does not apply in respect of an act committed by the transferor after the transfer; and

    • (b) it is not an infringement of the patent or any certificate of supplementary protection that sets out the patent if the transferee commits the act after the transfer.

  • Marginal note:Use or sale of article

    (5) The use or sale of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if that article was acquired, directly or indirectly, from a person who, at the time they disposed of it, could, under subsection (2) or (3) or paragraph (4)(b), sell the article without infringing the patent or the certificate.

  • Marginal note:Use of service

    (6) The use of a service is not an infringement of a patent if the service is provided by a person who, under subsection (2) or (3) or paragraph (4)(b), is able to provide it without infringing the patent.

  • Marginal note:Use of article

    (7) Subject to subsection (8), the use of an article is not an infringement of a patent or any certificate of supplementary protection that sets out the patent if the article was acquired, directly or indirectly, from a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, in good faith, made or sold, or made serious and effective preparations to make or sell, an article that is substantially the same as the one used, for that use.

  • Marginal note:Transfer

    (8) If the making or selling referred to in subsection (7) was done or the preparations to do so were made in the course of a business and that business, or the part of that business in the course of which the making or selling was done or the preparations were made, is subsequently transferred, then

    • (a) subsection (7) or paragraph (b), as the case may be, does not apply in respect of an article that is made or sold by the transferor after the transfer; and

    • (b) it is not an infringement of a patent or a certificate of supplemental protection referred to in subsection (7) to use an article for the use referred to in that subsection if it was made or sold for that use by the transferee after the transfer.

  • Marginal note:Use of service

    (9) Subject to subsection (10), the use of a service is not an infringement of a patent if the service is provided by a person who, during a period that is established by regulations made under paragraph 12(1)(j.75) that relates to that patent, provided, or made serious and effective preparations to provide, a service that is substantially the same as the one used, for that use.

  • Marginal note:Transfer

    (10) If, during the period referred to in subsection (9), the service was provided or the preparations to provide it were made in the course of a business and that business, or the part of that business in the course of which the service was provided or the preparations to do so were made, is subsequently transferred, then, after the transfer

    • (a) the transferor is deemed to no longer be the person referred to in subsection (9) for the purposes of that subsection; and

    • (b) the transferee is deemed to be the person who provided the service for the purposes of subsection (9).

Marginal note:Exception

  •  (1) It is not an infringement of a patent for any person to make, construct, use or sell the patented invention solely for uses reasonably related to the development and submission of information required under any law of Canada, a province or a country other than Canada that regulates the manufacture, construction, use or sale of any product.

  • (2) and (3) [Repealed, 2001, c. 10, s. 2]

  • Marginal note:Regulations

    (4) The Governor in Council may make regulations respecting the infringement of any patent that, directly or indirectly, could result or results from the making, construction, use or sale of a patented invention in accordance with subsection (1), including regulations

    • (a) respecting the conditions that must be fulfilled before a document — including a notice, certificate or permit — concerning any product to which a patent may relate may be issued to any person under any Act of Parliament that regulates the manufacture, construction, use or sale of that product, in addition to any conditions provided for by or under that Act;

    • (b) respecting the earliest day on which such a document may be issued to a person and the earliest day on which it may take effect, and respecting the manner in which each day is to be determined;

    • (c) respecting the issuance, suspension or revocation of such a document in circumstances where, directly or indirectly, the document’s issuance could result or results in the infringement of a patent;

    • (d) respecting the prevention and resolution of disputes with respect to the day on which such a document may be issued or take effect;

    • (e) respecting the prevention and resolution of disputes with respect to the infringement of a patent that could result directly or indirectly from the manufacture, construction, use or sale of a product referred to in paragraph (a);

    • (f) respecting the resolution of disputes with respect to the infringement of a patent that results directly or indirectly from the manufacture, construction, use or sale of such a product;

    • (g) conferring rights of action with respect to disputes referred to in any of paragraphs (d) to (f);

    • (h) restricting or excluding the application of other rights of action under this Act or another Act of Parliament to disputes referred to in any of paragraphs (d) to (f);

    • (i) designating the court of competent jurisdiction in which a proceeding with respect to rights of action referred to in paragraph (g) is to be heard;

    • (j) respecting such proceedings, including the procedure of the court in the matter, the defences that may be pleaded, the remedies that may be sought, the joinder of parties and of rights of action and the consolidation of other proceedings, the decisions and orders the court may make and any appeals from those decisions and orders; and

    • (k) specifying who may be an interested person for the purposes of subsection 60(1) with respect to disputes referred to in paragraph (e).

  • Marginal note:Inconsistency or conflict

    (5) In the event of any inconsistency or conflict between

    • (a) this section or any regulations made under this section, and

    • (b) any Act of Parliament or any regulations made thereunder,

    this section or the regulations made under this section shall prevail to the extent of the inconsistency or conflict.

  • Marginal note:For greater certainty

    (6) For greater certainty, subsection (1) does not affect any exception to the exclusive property or privilege granted by a patent that exists at law in respect of acts done privately and on a non-commercial scale or for a non-commercial purpose.

  • 1993, c. 2, s. 4
  • 2001, c. 10, s. 2
  • 2017, c. 6, s. 39
  • 2018, c. 27, s. 192
 
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