In Canada, the case law has defined patent infringement as any act that interferes with the full enjoyment of a patent owner’s exclusive rights of making, using, and vending its patented invention.
Where the patented invention is an assembly of well-known parts, Canadian courts have broadly interpreted the scope of the patent owner’s exclusive rights.
For example, signing in Canada an agreement to make and sell an allegedly infringing product may amount to infringement in Canada even if the product has not been manufactured at the time of the agreement. In other words, “vending” includes an actual sale, where the property in the goods is transferred from the seller to the buyer, as well as an agreement to sell.
In addition, a supplier may not avoid infringement liability by selling unassembled parts of a patented invention, where the only purpose for buying the unassembled parts is to assemble them into the patented invention.
Further, “making” a patented invention includes making all of the parts that are later sufficiently assembled to test the fitting of the parts. Thus, a manufacturer cannot avoid infringement liability by separating an infringing product for exporting outside Canada after the testing of the completed assembly have occurred in Canada.
With respect to “use”, Canadian courts have broadly held that infringement through “use” applies to patented products and processes, and may also extend to their output where the patented invention plays an important role in producing the output.
“It is no bar to a finding of infringement that the patented object or process is a part of or composes a broader unpatented structure or process, provided the patented invention is significant or important to the defendant’s activities that involve the unpatented structure.”
What is not always clear from case law, however, is whether making and exporting unpatented devices for practising abroad a Canadian patented method would constitute infringement in Canada.
In such context, it may be necessary to determine whether a physical device or apparatus can be a “part” of a claimed method, which generally comprises steps for performing the method and not the physical devices used in performing the method. It may also call for an analysis of whether there is a “making” of the claimed method by supplying devices for performing the method, and whether a sale of those devices is a “vending” of the method.