Contributory Infringement in Canadian Law

32 Pages Posted: 8 May 2019

See all articles by Norman Siebrasse

Norman Siebrasse

University of New Brunswick - Fredericton - Faculty of Law

Date Written: April 23, 2019

Abstract

Contributory infringement arises when a party knowingly supplies a direct infringer with a product especially adapted for use in a patented invention. Canadian courts have regularly stated that there is no liability for contributory infringement in Canadian law, in the absence of inducement. This article shows that there are nonetheless few cases actually refusing to impose liability on a contributory infringer, and none at the appellate level. The article argues that the reasoning and results in almost all the leading cases support a rule that supply of a product especially adapted to infringe, and with no substantial non-infringing use, constitutes indirect infringement, even in the absence of active inducement. The current shape of the law is a result of a misreading of the early leading case of The Copeland-Chatterson Company Ltd v Hatton, in combination with the problematic decision in Slater Steel Industries Ltd v R. Payer Co, which is the only prominent case refusing to impose liability in such circumstances. Slater Steel has been confined to its facts in both subsequent Court of Appeal decisions to address it, and this article argues that Slater Steel was wrongly decided on its facts. The article concludes that it is open to the courts to recognize that liability for contributory infringement may be imposed in Canadian law.

Keywords: patent, infringement, contributory infringement

Suggested Citation

Siebrasse, Norman, Contributory Infringement in Canadian Law (April 23, 2019). Available at SSRN: https://ssrn.com/abstract=3376790 or http://dx.doi.org/10.2139/ssrn.3376790

Norman Siebrasse (Contact Author)

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada
506-453-4725 (Phone)
506-453-4548 (Fax)

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