How to Grind Away at “Bad” Law

Résumé :

In this article the authors discuss approaches that litigants and appellate courts in Canada, particularly the Federal Court of Appeal with respect to patent law, may take when faced with situations where an area or question of law requires either course-correction or a new, definitive, precedent to supersede previous case law.

The law may require course-correction to provide clarity in situations such as when (1) there are competing, conflicting, and/or convoluted lines of authority; and (2) the Supreme Court of Canada has proven reluctant to take the matter on and provide a new authority. The area of patent law in Canada alone contains several examples of these situations, which legal experts have identified as requiring such course-correction. These include the laws concerning the inventive concept, essentiality of claim elements, double patenting, and patentable subject matter.

The opinions expressed in this article are those of the authors, based on their experience in litigation, particularly of patents, and are presented, in part, with the hope of starting a serious conversation about the need for the Federal Court of Appeal to be able to provide definitive clarity and reform to Canadian patent law, and the approaches that may be adopted to accomplish such change. The authors, however, express no opinion as to what the course-correction should be in any of these examples; that is beyond the scope of this article.