Journal Article

Comparing some Aspects of American and Canadian Patent Litigation

Rothstein, Marshall

2011

Overview

This article compares aspects of American and Canadian patent litigation. In the Canadian Supreme Court, patent cases are few and the rate of reversal is significantly below that of the U.S. Supreme Court. Ideological views of Canadian Supreme Court judges have little impact on decisions, which enjoy a high rate of unanimity. Pre-trial injunctions to protect patent holders can rarely be obtained in ordinary patent litigation in Canada, save in pharmaceutical patent litigation involving a separate regulatory regime patterned on the U.S. Hatch-Waxman Act. The heightened \"clear and convincing evidence\" standard of proof recently adopted in the U.S. to displace the presumption of validity of a patent would likely not be adopted in Canada, where the standard of proof would be on a balance of probabilities. Canadian courts regularly look to U.S. patent decisions for guidance on subject matter patentability. Finally, while patenting life forms can go into novel and challenging territory, the Supreme Court of Canada has, like the U.S., allowed patenting of lower life forms and apparently higher non-human life forms too under the Patent Act. [PUBLICATION ABSTRACT]

• Publisher: HAB Press Limited
• Subject: Comparative analysis / Injunctions / Litigation / Patent law / Pharmaceuticals / State court decisions / Validity