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ARTICLE · 25 JUNE 2014

Guidance Required For Judge-Made Concept Of Double Patenting

Borden Ladner Gervais LLP
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It has been recognized by the SCC and other levels of the Federal Court that double patenting is judge-made law.

CanadaIntellectual Property
Chantal Saunders
Chantal Saunders
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Despite statements by the Supreme Court of Canada1 ("SCC") that patent law is entirely statutory, it has been recognized by the SCC and other levels of the Federal Court that double patenting is judge-made law. The SCC in fact refers to the decision in Whirlpool Corp. v. Camco Inc2., and not a section of the Patent Act, as support for the concept that there may only be one patent covering an invention.

Section 36(1) of the Patent Act is often cited as support for the concept of double patenting but this section states only that:

a patent shall be granted for one invention only but in an action or other proceeding a patent shall not be deemed to be invalid by reason only that it has been granted for more than one invention.3

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