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Patent infringement

If your patent application has been approved and you have been able to register your invention with the patent office, it is now protected and you have exclusive rights to it for a maximum period of 20 years.

What happens if someone copies, reproduces, sells or licenses your patent without your permission after you have been granted a patent by the government?

They will have committed patent infringement. Patent infringement is forbidden by law in Canada and can see the violator incur steep penalties.

What protects my patent?

Unlike a copyright, patent protection does not automatically arise. You have to apply for a patent and a patent has to be granted to you before you get exclusive right to your patent.

Your patent is protected under s. 42 of the Patent Act of Canada. The section specifically protects the person who has been granted the patent and gives them exclusive right to use their invention.

There is another choice in protecting a patent and that can be done through a confidentiality agreement to protect the trade secret. However, those agreements are limited. The legal system can’t protect your trade secret from misuse. In addition, it may be very difficult to keep an invention secret for a long time, whether there is or isn’t an agreement. 

What can I do if I think my patent has been used without my permission?

If you think or know that your patent has been sold, used, made without your permission in the country in which you were granted a patent license then you can sue the party that infringed upon your exclusive right.

The other party may argue infringement did not occur or he or she could even attack the validity of your patent.

What if my patent was used without my permission before the patent was granted?

If your patent was used without your permission before you were given the grant for your patent, then you can still sue. You can sue for something called “reasonable compensation” for violations that occurred between the dates your application was made available for public inspection and the patent was granted.

It’s often a good idea to mark your invention as “patent pending” or “patent applied for” once you have filed your application. This will warn people that once you have been granted the patent that you can enforce your exclusive right by suing for patent infringement.

However, be aware that claiming your invention is already patented before you have been granted the patent is illegal in Canada.

What are the punishments for patent infringement?

Patent infringement is considered a serious offence in Canada. If someone has been found guilty of patent infringement he or she could face steep penalties. The penalties for patent infringement are a fine of up to $200,000, three months in jail or both.

If you suspect or know that your patent has been infringed you should consult a patent lawyer.

Read more:

A guide to patents

Protect your innovation