Canada Patent infringement

in canada, patents governed patent act, , rights of patent holder summarized @ s. 42:

by granting patent holder exclusive right, privilege , liberty of making, constructing, using, , selling invention, act establishes other person making, constructing, using, or selling patented invention infringing patent. whether there has been infringement of patent question of fact.

canada considered more friendly rights holders in pursuing patent claims in united states, due significant differences between 2 jurisdictions:

patents in canada subject purposive construction, relies on reading both claims , specifications determine scope of patent, , extrinsic evidence not permitted, leading absence of prosecution history estoppel.
while patent trials heard jury, canadian trials heard judge only, , claims of canadian patent construed once part of trial judge s decision on merits of case whole. in regard, federal court of appeal has ruled markman hearings not allowed under canadian law.
in canada, applicant has no obligation disclose material prior art, patents cannot invalidated on basis.
the same absence of obligation means competition act not come play, unlike occurs antitrust law in us.
the canadian discovery process more streamlined procedure, resulting in less cost , time in pursuing lawsuit, , possesses implied undertaking rule, barring use of information produced or disclosed in discovery purpose other present litigation (other leave of court).
canadian law allows plaintiff elect claim either compensatory damages or accounting of profits, can either act deterrent on infringement or incentive reach settlement before trial.
the availability of costs in canadian courts significant advantage plaintiff confident of success, deterrent pursuing more speculative cases.
treble damages not awarded in canadian courts, , punitive damages less awarded.






^ patent act (r.s.c., 1985, c. p-4) . s.42. 
^ monsanto canada inc. v. schmeiser 2004 scc 34 @ par. 30, [2004] 1 scr 902 (21 may 2004)
^ andrew m. shaughnessy; andrew e. bernstein (2005). patent litigation: choosing between united states , canada (pdf). metropolitan corporate counsel. 13 (2). 
^ free world trust v. Électro santé inc. 2000 scc 66, [2000] 2 scr 1024 (15 december 2000)
^ realsearch inc. v. valon kone brunette ltd. 2004 fca 5, [2004] 2 fcr 514 (9 january 2004)
^ flexi-coil ltd. v. bourgault industries ltd. 1999 canlii 7650, (1999) 86 cpr (3d) 221 (3 march 1999), federal court of appeal (canada)
^ walker process equipment, inc. v. food machinery & chemical corp., 382 u.s. 172 (1965)