Exhaustion of Intellectual Property Rights in Canada

Canadian Intellectual Property Review, Vol. 25, No. 3, 2009

30 Pages Posted: 10 Jul 2010  

Jeremy de Beer

University of Ottawa - Common Law Section

Robert J. Tomkowicz

University of Ottawa - Faculty of Law

Date Written: April 2009

Abstract

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

Suggested Citation

de Beer, Jeremy and Tomkowicz, Robert J., Exhaustion of Intellectual Property Rights in Canada (April 2009). Canadian Intellectual Property Review, Vol. 25, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1636425

Jeremy De Beer (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Robert J. Tomkowicz

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5 K1N 6N5
Canada

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