Patent infringement in Canadian law

Once an invention is patented in Canada, exclusive rights are granted to the patent holder as defined by s.42 of the Patent Act (R.S.C., 1985, c. P-4). Any interference with the patent holder's "full enjoyment of the monopoly granted by the patent" is considered a patent infringement. Making, constructing, using, or selling a patented invention without the patent holder's permission can constitute infringement.Possession of a patented object, use of a patented object in a process, and inducement or procurement of an infringement may also, in some cases, count as infringement.

In Canada, patents are governed by the Patent Act. Section 42 of the Patent Act establishes the rights of a patent holder:

42. Every patent granted under this Act shall contain the title or name of the invention, with a reference to the specification, and shall, subject to this Act, grant to the patentee and the patentee’s legal representatives for the term of the patent, from the granting of the patent, the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used, subject to adjudication in respect thereof before any court of competent jurisdiction.

By granting the patent holder the exclusive right, privilege and liberty of making, constructing, using, and selling the invention, the patent act establishes that any other person making, constructing, using, or selling the patented invention is infringing that patent. Whether there has been an infringement of a patent is usually a question of fact.

The Patent Act is a federal statute and thus bilingual. Under the Constitution Act, 1982, both the English and French versions of the statute hold equal status before the courts. The terms "making, constructing, using, and selling" should be read in the context of their French counterparts, "fabriquer, construire, exploiter et vendre". This has affected the interpretation of the term "use" in cases involving patent infringement.

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