Exhaustion of Intellectual Property Rights in Canada
Canadian Intellectual Property Review, Vol. 25, No. 3, 2009
30 Pages Posted: 10 Jul 2010
Date Written: April 2009
This article looks at the laws of different jurisdictions to demonstrate the common threads underlying the legal doctrine of exhaustion of intellectual property rights. In Canada, the applicability of the exhaustion doctrine to copyrights, trade-marks, and patents seemed clear. But one recent Supreme Court of Canada judgment casts doubt on the nature of exhaustion in respect of biotechnology patents. This article identifies the case of Monsanto v. Schmeiser as an outlier in Canadian intellectual property law. We propose various hypotheses that might justify the Supreme Court’s distinct attitude toward the principle of exhaustion in Canadian patent law. None withstands the scrutiny of investigation. As such, we conclude that it is likely and appropriate that the Supreme Court of Canada will continue to use the concept of exhaustion in future cases.
Keywords: intellectual property, exhaustion, Canada
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