Every patent granted under this Act shall contain the title or name of the invention, with a reference to the specification, and shall, subject to this Act, grant to the patentee and the patentee’s legal representatives for the term of the patent, from the granting of the patent, the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used, subject to adjudication in respect thereof before any court of competent jurisdiction.
Under the Constitution Act, 1982, both the English and French versions of the statute hold equal status before the courts.
[7] The terms "making, constructing, using, and selling" should be read in the context of their French counterparts, "fabriquer, construire, exploiter et vendre".
[8] Before an infringement can be established, it is necessary to construct the claims to determine what elements of the invention are essential and which are non-essential.
[10] Courts should not take a purely literal interpretation of the patent, courts should determine whether a Person Skilled in the Art would conclude that strict adherence was essential or that a substitute or slight variation would not affect the invention.
[14] It is an infringement to make, construct, or sell a thing that copies the essential elements of a patented invention without permission.
[16] Cases alleging infringement based on "use" require special attention due to the difficulty in interpreting the term "use".
Interpretation of the term "use" begins with the plain meaning of the words "use" and its French complement "exploiter".
"Exploiter" was found to lend clarification to the term "use" in patent law, leading to a definition of "utilization with a view to production or advantage".
[18] In the context of patent infringement, "use" is defined as any activity that "deprives the inventor in whole or in part, directly or indirectly, of full enjoyment of the monopoly conferred by law".
[22] The patented part must be significant or important because it must be shown that it is used when the encompassing unpatented object is used.
Windsurfing International Inc. v. Trilantic Corp.[5] dealt with a manufacturer selling the unassembled components of a patented sailboard.
To suggest that a patent infringement suit can be successfully avoided by selling parts as components of a kit in contradistinction to their sale assembled is, in my view, errant nonsense.In MacLennan v. Produits Gilbert Inc.,[27] the court established a three-pronged test to determine whether there has been an inducement: Unlike in America and Britain, it is not an infringement to produce or sell an unpatented replacement part, even if the only possible use for that replacement part is in a patented invention.
[29] In MacLennan v. Produits Gilbert Inc.,[30] the manufacturer of replacement parts was found to have knowingly induced patent infringement by indicating its intended use in its competitor's product when selling the components.
[31]The question of who qualifies as a person "claiming under" a patentee has been analyzed numerous times by Canadian courts.
In particular, the Supreme Court of Canada has confirmed that a non-exclusive licensee may sue for patent infringement.