Friday, 17 February 2012

Patent litigation in Canada: standards of review

"What is the standard of review for patent litigation in Canada?" is the title of an article by Professor Emir Aly Crowne (Associate Professor in the Faculty of Law at the University of Windsor; a barrister and solicitor) which has already been published online in the March 2012 issue of Oxford University's Journal of Intellectual Property Law and Practice (JIPLP). According to the abstract:
"In Canada patents are administratively granted by the Commissioner of Patents. Yet administrative law principles have never been applied when determining the validity of a patent during litigation.

Courts have always proceeded on the basis of a trial de novo to determine whether (on a balance of probabilities) the patent was valid and properly granted.

This paper examines the apparent tension between the Patent Act, patent jurisprudence and administrative law principles in litigating the validity of a patent".
This is a topic which appears to have received little attention in most jurisdictions; readers' reflections, both from inside Canada and elsewhere, are welcomed.

Non-subscribers to the online version of JIPLP can purchase short-term access to online articles. To do so for Professor Crowne's article, click here and follow instructions under ' Purchase Short-Term Access'.  The print version will be published at the end of the month.

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