IP Budget 2018 – Changes To Canada's IP Laws

On October 29th, 2018, Canada's federal government tabled an omnibus budget implementation bill, entitled the Budget Implementation Act, 2018, No.2 (the "Budget Implementation Act"). At over 800 pages long, it amends dozens of existing federal laws, creates various new government departments, and includes new statutes in their entirety. Specifically, Division 7 of the Budget Implementation Act is entitled Intellectual Property Strategy, and contains many provisions relating to Canada's patent, copyright and trademark regime.

Outlined below is a brief review of the proposed changes to Canada's intellectual property regime contained within the Budget Implementation Act.

Changes to the Patent Regime

As outlined by the summary provided by the Minister of Finance, subdivision A of Division 7 of Part 4 of the Budget Implementation Act amends the Patent Act in order to:

(a) provide a regulation-making authority for the establishment of requirements for written demands relating to patents;

All written demands regarding a patented invention received by a person in Canada will have to comply with requirements to be prescribed by the Governor in Council. Failure to comply with the prescribed requirements may result in the Federal Court granting various types of relief, including punitive damages.

(b) specify that an act committed for the purpose of experimentation relating to the subject matter of a patent is not an infringement of the patent and that licencing commitments that bind the owner of a standard-essential patent or the holder of a certificate of supplementary protection that sets out such a patent bind any subsequent owners or holders;

With respect to experimentation, the bill amends the provision defining an act committed for the purpose of experimentation relating to the subject matter of a patent, held not to be an infringement of the patent. More specifically, the amendment removes the requirement that the experimentation must be done for non-commercial use.

A standard-essential patent is typically directed to technology which has to comply with a technical or industry standard (like Bluetooth for example). The proposal gives the Governor in Council power to regulate these terms.

(c) expand the rights of a person in respect of a claim in a patent who meets the prior user exemptions of s. 56 of the Patent Act;

The section of the Patent Act governing the prior user exemption is proposed to be expanded. The notable changes are:

Prior use...