Canadian Patent Infringement Exceptions

Recent Canadian court cases have provided insight into the scope of statutory "safe harbour" exemptions from patent infringement. The safe harbour in s. 55.2(1) of the Canadian Patent Act provides a patent infringement exemption for activities reasonably related to generation of information for a regulatory agency, such as Health Canada or the U.S. FDA.  The Canadian safe harbour is based on a similar provision in U.S. law, except the Canadian law is broader in that it is not limited to drug development but could apply to other types of regulatory approvals.  There are also common law exceptions to patent infringement which are created in court decisions, not statutes passed by the government.  The common law exception is narrow, for example permitting testing of an invention merely to see if it works.  The narrow scope of this common law exemption was part of the reason for enacting the broader safe harbor.