Let Me Help You With That: Inducing Patent Infringement in Canada

Abstract:

Canada’s Patent Act, unlike patent statutes in the United States and the United Kingdom, does not provide explicitly for liability for inducing patent infringement. Nevertheless, it has long been understood that one who knowingly and for his or her own end and benefit induces or procures another to infringe a patent himself or herself infringes the patent. Over the past few decades, the issue of inducing infringement has become increasingly important in patent infringement actions. Canadian courts have developed a test for inducing patent infringement comprising three essential ingredients: (1) an act of infringement completed by a direct infringer; (2) completion of the infringing act was influenced by the inducer; and (3) the influence was knowingly exercised. Each of these essential ingredients has been discussed in detail in the jurisprudence. This article canvasses this jurisprudence and discusses some of the difficult questions that may arise in relation to each.