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Patent infringement

Region: 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.

Amendments to the Patent Act – Intervening Rights of Third Parties

On October 30, 2019, new Rules and Amendments to the Patent Act came into force, which make it consistent with international Patent law and include provisions to patent infringement and the protection and intervening rights of third parties.

Protection of a third party against charges of infringement only apply under certain circumstances and where there is a “prescribed period” established under the Patent Regulations. As of October 30, 2019, protections may apply when the following has occurred:

1.  A failure to pay maintenance fees for pending applications 

  • If the application is deemed to be abandoned: The starting period of third party rights begins six months after non-payment of maintenance fees, and ends when the application is reinstated or the patent is granted, whichever is earlier, and it was shown that due care was taken regarding action on both.
  • If the application is deemed not to be abandoned: The starting period begins six months after non-payment of maintenance fees, and ends on the date the required fees are paid or the patent is granted, whichever is earlier.

2.  A failure to pay maintenance fees for granted patents

  • If the patent is deemed to be expired: The starting period of third party rights begins six months after non-payment of maintenance fees, and ends on the date the required fees are paid and it was shown that due care was taken to pay fees.
  • If the patent is deemed not to be expired: The starting period begins six months after non-payment of maintenance fees, and ends on the date the required fees are paid.

3.  A failure to request examination

  • If the application was deemed to be abandoned: The starting period of third party rights begins six months after the prescribed time to request examination during the application process, and ends on the date the application is reinstated or the patent was granted, whichever is earlier, and it was shown that due care was taken regarding action on both.
  • If the application was deemed not to be abandoned: The starting period begins six months after the prescribed time to request examination, and ends on the date the request was being made and all required fees were paid, or the patent was granted, whichever is earlier.

Section 55.11(2) of the Patent Act states that if a person, in good faith, committed an act under these circumstances that would otherwise constitute an infringement of that patent, that act is not an infringement of the patent. Therefore, the person may continue to commit the act even after the patent application is reinstated or the patent is granted.

For more information about patents, refer to the Canadian Intellectual Property Office.

For legal assistance if someone infringes your patent, or for other intellectual property matters, contact our preferred lawyers and see who’s right for you: 

Bereskin & Parr

Gilbert's LLP


Bereskin & Parr Intellectual Property ON All Topics March 21, 2018Bereskin & Parr Intellectual Property ON All Topics March 21, 2018

Gilbert’s LLP Intellectual Property ON All Topics March 21, 2018Gilbert’s LLP Intellectual Property ON All Topics March 21, 2018

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