The Promise of the Patent in Canada and Around the World

Abstract:

All states require that patents be issued only for “useful” inventions. But recent decisions in Canada surrounding the invocation of the “promise of the patent” have provoked controversy both at home and internationally, with some alleging that they represent a novel and unjustified increase to the stringency of Canada’s utility standard. This article shows that these allegations are unfounded. The promise of the patent has a long history in Canadian and British patent law, and one that possesses sound policy justifications. Equally, promises are recognized and enforced under various guises by the patent law of the United States, Australia, New Zealand, and the European Patent Office. The article concludes by examining some of the open issues and unanswered questions that exist in Canadian courts’ approach to promises contained in patents.