Utility: Unravelling the Real Differences with Our Closest Trading Partner

Abstract:

This article analyzes modern Canadian case law on promises and reveals that some cases are promise-centric—that is, promises take on the central role of setting disclosure standards—while others adopt a more holistic approach. Whether a statement rises to the level of a promise can be highly dependent on an agent’s particular drafting style. But if it does rise to this level, and the patent’s promise is not met, a claim of the patent may be rendered invalid. This harsh outcome needs to be tempered by a more balanced approach to construction. Given other countries’ criticism of the Canadian utility requirements as being out of line with those countries’ laws, a comparative and historical analysis between Canada and other patent regimes, with a particular focus on the United States, is warranted. As demonstrated, the holistic approach to setting disclosure standards better serves policy objectives and is more in line with the laws in the United States.