The Promise of the Patent in Canada and Around the World

30:1 Canadian Intellectual Property Review 35 (2014)

48 Pages Posted: 30 Nov 2013 Last revised: 5 Sep 2014

See all articles by E. Richard Gold

E. Richard Gold

McGill University - Faculty of Law

Michael Shortt

McGill Faculty of Law

Date Written: November 24, 2013

Abstract

All states require that patents be issued only for “useful” inventions. But recent decisions in Canada surrounding the invocation of the “promise of the patent” have provoked controversy both at home and internationally, with some alleging that they represent a novel and unjustified increase to the stringency of Canada’s utility standard. This paper shows that these allegations are unfounded. The promise of the patent has a long history in Canadian and British patent law, and one that possesses sound policy justifications. Equally, promises are recognized and enforced under various guises by the patent law of the United States, Australia, New Zealand and the European Patent Office. The paper concludes by examining some of the open issues and unanswered questions that exist in courts’ approach to promises contained in patents.

Keywords: Intellectual property; patent law; utility; comparative law

JEL Classification: K33, K39

Suggested Citation

Gold, E. Richard and Shortt, Michael, The Promise of the Patent in Canada and Around the World (November 24, 2013). 30:1 Canadian Intellectual Property Review 35 (2014). Available at SSRN: https://ssrn.com/abstract=2361146 or http://dx.doi.org/10.2139/ssrn.2361146

E. Richard Gold (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

Michael Shortt

McGill Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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