In
Section 53.1 was recently added to the Canadian Patent Act to preclude patentees from asserting a position during litigation that was inconsistent with their previous statements to the Patent Office. In the present case, the plaintiff
The decision is interesting because it appears to allow the complete circumvention of section 53.1 simply by licensing a patent, and the Court recognized this "mischief" but felt that the words used in the section and the legislative history (including the rejection of a broader version of the wording that would have captured licensees during consultations on the draft legislation) required this interpretation.
A copy of the decision in Allergan is available here. A review of recent Canadian jurisprudence clarifying the scope of section 53.1 is available here.
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