Patent Act (Canada)

The Patent Act is the Canadian Act of Parliament that governs the patent law in Canada. It states what can be patented and how patents are to be obtained. The Patent Act also governs the Patent Office and limits the power and responsibility of the Commissionaire of Patents. [http://csc.lexum.umontreal.ca/en/2002/2002scc76/2002scc76.html Supreme Court of Canada - Decisions - Harvard College v. Canada (Commissioner of Patents) ] ]

Purpose

The purpose of patents is to protect inventions of inventors or their appointees and legal representatives. Patents provide exclusive right to produce and distribute a patented invention. [http://www.trytel.com/~pbkerr/patent.html Patent Law in Canada ] ]

These restrictions form a system of encouraging economic and technical growth. The patent is contract between the inventor and the government who represents society. The inventor obtains a monopoly limited by to a 20 year term over producing and selling the patent. Society gains disclosure of the invention and free use of it after the patent expires.http://cbac-cccb.ca/epic/site/cbac-cccb.nsf/vwapj/Duy_CdnPatents_e.pdf/$FILE/Duy_CdnPatents_e.pdf]

History

The first patent in Canada was granted by the legislature of Quebec in 1791. No official patent act followed until about 30 years later when Upper and Lower Canada enacted patent acts in the 1820s.

It wasn't until the passing of the British North America Act and the creation of the nation of Canada that the first federal Patent Act was created. The first patent act was created as a part of the British North America Act in 1869. This act granted patents for a term of 15 years, divided into 3 five year periods.

The second federal Patent Act was passed in 1872 and allowed foreigners to register patents.

In the 1880s and 1890s the Patent Act was amended to extend patent terms from 15 to 18 years, divided into 3 six year periods.

The Patent Office and post of Commissionaire of Patents are established by statute between 1900 and 1919.

In 1923 the third federal Patent Act provides provisions for inventions created by public servants.

The fourth federal Patent Act was passed in 1935, this act had provisions for the procedure of obtaining patents on inventions related to national defence and atomic energy.

The Patent Office and position of Commissionaire of Patents were incorporated into the new Canadian Intellectual Property Office in 1991.

In 1993 the requirement that an invention be not obvious was added to the Patent Act.

In 1996 the TRIPS implementation act was passed.

Patents are extended from 18 to 20 years as a result of a WTO ruling that 18 year patents violate TRIPS requirements in 2001. [http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00725e.html Canadian Intellectual Property Office - Government Of Canada brings Patent Act into conformity with obligations under the World Trade Organization ] ]

Applicable Subject Matter

Patents apply to physical inventions and process, but not literary works, most software and other forms of intellectual property. For more information see Patentable subject matter#Canada.

Patent Enforcement

It is the responsibility of the patent holder to enforce the patents they hold. This is down by taking potential violations to court to determine if the patent has been violated and obtain compensation. Court action can be very expensive and can deter people from enforcing their patents. Top Research and Development firms report an average expense per case of $370,000. Since bill C-91 was passed in 1993, most patent cases have been heard in Federal Court.

Notable Patent Cases

A notable case involving the Canadian Patent Act is Canada vs Harvard College. This case revolved around the patentability genetic engineering of higher life forms, and is also known as the Harvard Mouse case oncomouse. In this case an initial patent on the genes was rejected. The supreme court also gave parliament the responsibility to decide if higher life forms can be patented,"neither the Commissioner of Patents nor the courts have the authority to declare a moratorium on “higher” life patents until Parliament chooses to act."

References and Notes

ee also

* Bill C-9 - Jean Chrétien Pledge to Africa Act
* Pledge to Africa Act
* "Manual of Patent Office Practice" (MOPOP)
* Canadian patent law

External links

* [http://laws.justice.gc.ca/en/P-4/index.html Patent Act text]