Use Of Patents By Government

Government may apply to use patented invention

19. (1) Subject to section 19.1, the Commissioner may, on application by the Government of Canada or the government of a province, authorize the use of a patented invention by that government.

Conditions for authorizing use

19.1 (1) The Commissioner may not authorize the use of a patented invention under section 19 unless the applicant establishes that

(a) it has made efforts to obtain from the patentee on reasonable commercial terms and conditions the authority to use the patented invention; and

(b) its efforts have not been successful within a reasonable period.

Exception

(2) Subsection (1) does not apply in cases of national emergency or extreme urgency or where the use for which the authorization is sought is a public non-commercial use.

Liability for patent infringement

55. (1) A person who infringes a patent is liable to the patentee and to all persons claiming under the patentee for all damage sustained by the patentee or by any such person, after the grant of the patent, by reason of the infringement.

Exception

55.2 (1) It is not an infringement of a patent for any person to make, construct, use or sell the patented invention solely for uses reasonably related to the development and submission of information required under any law of Canada, a province or a country other than Canada that regulates the manufacture, construction, use or sale of any product.

Idem

(2) It is not an infringement of a patent for any person who makes, constructs, uses or sells a patented invention in accordance with subsection (1) to make, construct or use the invention, during the applicable period provided for by the regulations, for the manufacture and storage of articles intended for sale after the date on which the term of the patent expires.

For greater certainty

(6) For greater certainty, subsection (I) does not affect any exception to the exclusive property or privilege granted by a patent that exists at law in respect of acts done privately and on a non-commercial scale or for a non-commercial purpose or in respect of any use, manufacture, construction or sale of the patented invention solely for the purpose of experiments that relate to the subject-matter of the patent.

Section 19.1, subsection 2, is an exception to the exclusivity rights granted to a patent holder that allows governments to use a patent for public, noncommercial purposes. Research, teaching, and other scholarly activities clearly fall within the scope of this exception. Section 55.2, subsection 6, clarifies that nothing should be interpreted in such a way as to remove the research exception and extends the right to experiment to private agents.

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