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Patent Issues under Canada’s COVID-19 Emergency Response Act

The Federal Government’s COVID-19 Emergency Response Act contains certain amendments to the Patent Act that permit the Federal Government authorize anyone to “make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency”.  The government tabled and passed this Bill and it received Royal Assent on March 25, 2020.

This allows the Government to authorize the manufacture of patented medical devices – really, it applies broadly to any patented device, not just medical devices.  Any patented article that is covered by the application could be manufactured without infringing the patent rights.

The provision contemplates a type of license payment by the Government to the patent holder, which would be a dollar amount “that the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization and the extent to which they make, construct, use and sell the patented invention.”

The new law gives affected patent holders the option to make an application to Federal Court to seek an order “to cease making, constructing, using or selling the patented invention in a manner that is inconsistent with the authorization granted under this section.”

To justify this extraordinary step of permitting the Government-mandated infringement of patent rights, this type of maneuver would require confirmation from the Chief Public Health Officer that there is a public health emergency that is a matter of national concern, although that part certainly seems to be apparent at present.

There is a sunset clause which permits this extraordinary provision to continue to September 30, 2020.