"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.This is a topic which appears to have received little attention in most jurisdictions; readers' reflections, both from inside Canada and elsewhere, are welcomed.
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".
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