LEGISLATIVE ALERT: Validity of Patents in Jeopardy –
July 12, 2007

Ottawa, July 11, 2007…A recent Federal Court decision on new disclosure requirements for Patents will have an extremely negative impact on Canadian research and innovation if not overturned on appeal. The decision runs counter to the CATAAlliance Innovation Nation Campaign, designed to improve Canada’s global innovation rating, now 14th among the 18 OECD countries. It is counter to global best practices.

We bring this matter to your attention as a legislative exposure alert as well as to confirm any interest you might have in making legal representations to the Federal Court of Appeal in an attempt to overturn this decision.

Impact of the Decision

  • The decision has far-reaching implications and could lead to invalidation of thousands of Canadian improvement patents in, at least, the chemical, materials, pharmaceutical, biotechnology, and agrifood industries.
  • If not overturned, this change in patent law creates a disincentive for R&D investments in Canada and puts Canadian innovators on unequal footing with international competitors.
  • The decision is out of step with existing Canadian law, as well as other jurisdictions, including U.S. and EU law, making Canada an outlier among all developed and developing countries.
  • The decision violates international IP treaties (TRIPS, PCT) to which Canada is a signatory.

The decision has been appealed. However, due to the particular nuance of the underlying proceeding, there is a risk that the Court may dismiss the appeal without considering the merits of the case. That being said, the Court may exercise its discretion to hear the appeal to resolve a significant question of law. Therefore, it is critical to establish with the Court of Appeal that this important question of law must be heard.

++ Action Required

One effective way of highlighting the negative impact of this case is for affected third parties to intervene and present written arguments to the Court of Appeal.

Please request your "New Disclosure Requirements for Patents" briefing note and confirm your interest by contacting CATAAlliance President, John Reid at reid_john@rogers.com