Common law remedies include damages aimed at putting the plaintiff in the position he would have occupied had the infringement not occurred.
Under section 2 of the Patent Act, an invention is defined as: any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter[5]If the defendant can successfully show that the invention does not fall into any of these classes, then the patent will be invalid.
[9] However, in Burton Parsons Chemicals, Inc. v. Hewlett-Packard (Canada) Ltd., the same defence was not successful because a person skilled in the art would know which of the unspecified material could and could not be used.
The earlier case Reeves Brothers Inc. v. Toronto Quilting & Embroidery Ltd.[11] holds that the prior disclosure must include all requisite factors in a single document without making a mosaic.
Apotex Inc. v. Sanofi‑Synthelabo Canada Inc. outlines major considerations in fields where this occurs: whether it is self-evident that what is being tried should work, the extent of the effort required to achieve the invention, and motive in the prior art to find a solution to the problem.
Use has been defined in Monsanto Canada Inc. v. Schmeiser as any activity that deprives an inventor, in whole or in part, directly or indirectly, of full enjoyment of the monopoly as conferred by law.
[13] Monsanto Canada Inc. v. Schmeiser sets a very high bar for a defence based on these terms, as possession of the invention leads to an rebuttable presumption of use.
[14] For example, in British United Shoe Ministry v. Simon Collier Ltd., the patented invention was a part of a machine which the defendant bootmaker had removed and set aside.
The Gillette defence is a way of arguing non-infringement by proving invalidity without requiring the patent claims to be construed.
The defence is based on an early 1900s decision from the House of Lords and allows the defendant to plead that their alleged infringing actions are part of the prior art, and thus either the patent is invalid for claiming the prior art or if the patent is valid, the defendant does not infringe.
[19] In view of the Supreme Court's decision in Free World Trust, any Gillette Defence would still require that the patent claims are construed prior to determining infringement.
International treaties such as NAFTA[20] and TRIPs[21] allow member states to create exceptions from the exclusive rights enjoyed by patent owners where the exceptions: Under the Canadian Patent Act, legitimate user rights include prior use, experiments and research, and private non-commercial uses.
[23] However, it is uncertain at present whether section 56 would apply to a patented method or process per se used prior to the relevant date.
[26]Consequently, other jurisdictions such as the United Kingdom[27] and New Zealand[28] have held that a researcher may ignore a patent when conducting experiments.
[24] Fair research and experimentation is considered to end when the product or process is ready for commercial exploitation.
A person may pursue research on an existing patent only for "amusement, satisfy[ing] idle curiosity, or for strictly philosophical inquiry.
55.2 (1) It is not an infringement of a patent for any person to make, construct, use or sell the patented invention solely for uses reasonably related to the development and submission of information required under any law of Canada, a province or a country other than Canada that regulates the manufacture, construction, use or sale of any product.
[24] Such an exception would be consistent with other acts such as the Integrated Circuit Topography Act, which includes provisions protecting users who make or copy a topography for the purposes of education,[33] and the proposed amendments to Canadian copyright law which add education to the enumerated purposes for the fair dealing exception.
(1) In any action for infringement of a patent, the court, or any judge thereof, may, on the application of the plaintiff or defendant, make such order as the court or judge sees fit, (a) restraining or enjoining the opposite party from further use, manufacture or sale of the subject-matter of the patent, and for his punishment in the event of disobedience of that order, or (b) for and respecting inspection or account,
[37] Interlocutory injunctions, which prevent the defendant from engaging in the allegedly infringing activity during the court proceedings, used to be de rigueur in intellectual property cases.
[35] In order to show that in interlocutory injunction is justified, a plaintiff must show: In the case of patent law, an interlocutory injunction would seriously inhibit the ability of an alleged infringer from developing a new invention, even if their activity did not infringe the original patent's claims.
[40] An accounting of profits is an equitable remedy entirely based on the idea that the defendant did not have the right to benefit from the property of the plaintiff patent holder.