European Union

Canada

IP Enforcement

[Follow-up question from the EC] Please explain in detail under what provisions Canadian courts have a specific statutory authority to prevent the entry into the channels of commerce of goods which infringe patent rights. Under what circumstances would it be considered "appropriate" for the courts to order that such infringing goods not be imported into Canada?

There is no express authority in the Patent Act conferring on the patentee the right to prevent others from importing a patented invention. However, section 42 of the Act confers "the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used". The courts have interpreted these rights as extending to the importation of a patented product, i.e., that importation for purposes which would infringe those rights would also be an infringement. The inherent equitable jurisdiction of the superior courts and the Federal Court would include the authority to make an injunctive order preventing the release of such imported product into the channels of commerce in Canada.