IV. Patents
Lucie Guibault
A. Introduction
Among the most famous inventions for which patent protection has ever been sought are the mousetrap, the lightbulb, the telephone, Aspirin, the compact disk, the recombinant DNA method, the viagra pill and the Covid-19 vaccine. Any new, inventive and useful process or product, in any field of activity, is in principle eligible for protection – or, as the U.S. Supreme Court once uttered: ‘anything under the sun that is made by man is patentable‘. Few inventions come about as a strike of genius. Many more are the result of huge investments in research and development (R&D), representing immense amounts of money, time and expertise. Patent protection is meant to stimulate innovation by allowing owners to recoup R&D investment and turn a profit on their invention. But no empirical evidence convincingly establishes that the patent system generally achieves this goal. Only in specific sectors of industry, like in the pharmaceutical industry, do patents play a clear role in further development. In most sectors, the case for patent protection is inconclusive at best. Paradoxically, the number of patent applications filed in a country is often seen as a proxy for innovation and growth. Nevertheless, the patent system is credited for encouraging the dissemination of knowledge and information to the public through publication of patent applications and granted patents. So, while patent protection has benefits, it also carries drawbacks: for, even if the patent system acts as a stimulus for innovation, the exclusivity it confers leads almost by definition to high(er) consumer prices and limited access to inventions – think of drugs or vaccines, for example. Moreover, powerful corporations are known to use their patent portfolios as a strategic tool to block competitors from coming too close. To reduce such rent seeking behaviour by corporations, it is paramount that the requirements for protection be strictly applied, so as avoid rewarding trivial inventions, also known as ‘patent trolls’.
1. Legislative history
The origin of Canada’s patent legislation can be traced all the way back to the British Statute of Monopolies of 1623. The Statute of Monopolies declared all monopolies illegal and void save only those few specifically excepted from its operation. This Act was never officially repealed and some commentators believe that it became part of the law of Canada at the time of the Treaty of Paris. Although the philosophical underpinnings of the systems in force in Great Britain and on the North American continent eventually diverged, both systems share a common source in the common law of England as expressed in the Statute of Monopolies. The case law of Great Britain has been accepted as authoritative in interpreting the patent law of Canada, save where the statutory provisions of the two countries have diverged.
The first Act in respect to patents was enacted by the Legislature of Lower Canada in 1823, which Uppe