Patent Infringement Actions
Canadian patent owners and their legal representative(s) have the exclusive right to make, construct, use and sell the claimed invention for a 20-year term beginning on the filing date. If someone interferes with the “full enjoyment of this monopoly”, or induces someone else to do so, then an infringement action can be filed in the Federal Court or in the superior court of a province. Non-infringement, invalidity, experimental use, and/or prior use may be asserted as defenses.
Litigants are required to disclose all relevant documents in their power, possession or control, and to be examined for discovery (akin to a deposition). Inventors may be examined for discovery as of right. Independent experts are hired by each party to prepare reports and help the Court interpret the patent through the eyes of a person skilled in the art.
Federal Court patent trial usually begin 24-36 months after the case begins and are heard by a judge alone (no jury).
Trials generally range in length from 5 to 25 days depending on the number of issues, documents, and witnesses. Courts have the power to grant injunctions (interim, interlocutory and permanent), award damages or an accounting of profits, and to order the destruction of infringing goods. The losing party is required to pay a portion of the successful party’s legal fees and disbursements.