2017-06-14
To those businesses whose inventions are critical to their success, patent protection is crucial. Patents provide exclusive rights to owners over their inventions. The owner gains a monopoly to manufacture, sell, and profit from the invention; barring competition from the market and establishing their brand. When someone else makes or uses your invention without permission, it is called patent infringement. What do you do when you face a patent infringement? The Canadian Law provides various ways of fighting a patent infringement.
The first step is to identify the stage when your patent is being infringed. A patent application for an invention similar to the one you own and even the general use of your patent without permission may constitute infringement. In the first case, you may wish to render the patent invalid and in the second you may have to file a lawsuit. Depending on the stage, choose from these various ways to fight a patent infringement.
Protest On The Basis Of A Prior Art
A patent application is published 18 months after filing which allows interested parties to review them. In the event that you find an application similar to your patent, you can challenge it on the basis of a prior art. This is also a valid option when you receive a cease and desist letter related to a patent application. A prior art can be any patent or any similar object that has already been or is in use. Since one cannot patent a non-inventive or a non-novel invention, the patent application can be rendered invalid on this basis.
Request A Re-Examination
In the event that the patent is issued, you can file a re-examination request to challenge the validity of the patent. The appeal can be made only on the basis of a prior art anytime during the term of the patent. On receiving the request, the Commissioner of Patents will notify the alleged infringer/patentee if he finds the request to be valid. After the hearing, the board may issue a certificate of cancellation or ask the alleged infringer/patentee to make amendments. However, in this case, the defendant is free to appeal to the Federal Court.
File a Lawsuit Or A Patent Impeachment Action
Patent litigations are a common approach to fight infringement. A lawsuit is generally initiated by a cease and desist notice to the alleged infringer, demanding them to stop the infringement. If the request is not honored, the next step is the filing of a lawsuit with the Federal Court. Litigation is often a time intensive process and it can take years to arrive at a final decision. A similar option is to file a patent impeachment with the Federal Court. The proceeding is brought about by directly filing an action with the Federal Court. If no settlement is arrived upon, a trial is initiated whereby both parties get to defend their stand. Depending on the decision, you also have a chance to appeal to the Federal Court of Appeal.
Typically, patent infringement cases end up in a settlement between the parties. But, you may choose to risk a judgement to invalidate a patent or receive damages. Whether you chose to invalidate the patent at an early stage or take the matter to Court, it requires careful consideration. It is advisable to consult a patent lawyer for the best available option suited to your circumstances.
