Prior Use Of An Inaccessible Invention: Is It Disclosure?

Canada's laws provide a one-year grace period for public disclosures by the applicant (or by a person who obtained knowledge of an invention from the applicant) calculated from the Canadian filing date. The particulars of Canada's grace period are detailed in our article "Public disclosures of inventions – what you need to know about Canada's grace period." In a recent line of cases centered in the Alberta oil sands, Canada's courts have considered what constitutes public disclosure of an invention by the inventor, which would trigger the start of the grace period. 

The Supreme Court of Canada, in Apotex v Sanofi-Synthelabo Canada, 2008 SCC 61, held that "disclosure" of an invention can be established by, among other things, prior use of the claimed invention in public. To establish prior use in public, it is necessary to show that the invention was "available" to at least one member of the public under no obligation of confidentiality. While a plain reading