Area of Law: Intellectual Property
Answer # 302
Patent infringementRegion: Ontario Answer # 302
Patent infringement occurs when, for example, someone makes, uses, or sells a patented invention without the permission of the owner. Generally speaking, for a patent infringement to occur, someone must make, use, or sell the invention in a country where the inventor holds a patent, without the direct or indirect permission of the owner. The Patent Office at the Canadian Intellectual Property Office (CIPO) will not prevent other people from infringing on your patent. It is up to the owner of a patented invention to ensure that no one else uses it.
Your invention is also protected for a period after the patent application is filed but before a patent is granted. This protection is only available for inventions that are eventually patented. If you receive a patent, you can sue someone for infringing your patent for an infringement that occurred after the day that your application is published. If you can prove that they infringed your patent, the court can order them to stop using your invention and to pay you compensation.
What to do if someone infringes your patent
If someone infringes your patent and you wish to pursue legal action, you should contact a lawyer. Whether the court agrees that an infringement has occurred will largely depend on the wording you used to define the invention in your patent application. This is why it is so important to clearly define your invention when you file an application for a patent. Also, it is important to be aware that patents are always open to re-examination or other forms of attack. This means that the person who infringes your patent may well argue that your patent is invalid. You should contact a patent lawyer for advice if someone has made, used, or sold your patented invention without your permission.
New Patents Act – Intervening Rights
On December 16, 2014, Bill C-43 received Royal Assent, amending the Patent Act to make it consistent with international Patent law. The new Act is not yet in force.
The new Act introduces the concept of intervening rights for third parties who would otherwise be considered to be infringing on someone’s patent rights. These provisions only apply to:
- patents that have been abandoned and reinstated, or expired and revived, and
- in very specific circumstances and time periods
The purpose of the new provisions is to provide some protection against infringement proceedings for those third parties who start using, or make serious preparations to use, a patented invention during a period of time where the patent has been abandoned (and not yet reinstated), or expired (and not yet revived). For example, a person who is monitoring a patent and sees that it has expired or that a maintenance fee has not been paid, would not be able to determine if the expiration or abandonment is irrevocable. Therefore, they would not be able to start using the patent without the risk of infringement. The new Act will offer some protection for these people, but only after a defined period of time has elapsed where the patent holder has not taken action to reinstate or revive their patent.
For more information about patents, refer to the Canadian Intellectual Property Office.
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