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File Wrapper Estoppel may be Coming to Canada

The Canadian government has tabled an omnibus budget implementation bill that, if enacted, will introduce many changes to Canadian IP legislation.  Among these, the government proposes to legislatively overrule the Supreme Court of Canada and introduce file wrapper estoppel into Canadian law.

Specifically, the proposed legislation would allow statements between patent applicants and the patent office to be introduced into evidence in legal proceedings to rebut any position taken by the patent owner with respect to the meaning of the patent claims.  Currently, as established by the Supreme Court of Canada, such statements made during the processing of the patent application cannot be admitted as evidence in a legal proceeding for the purpose of construing the claims of the patent.  This is currently the case even if the patent applicant says that the claims mean one thing to secure allowance of the claims, and then says that the claims mean something entirely different during litigation to enforce the patent.

The full provisions of the bill aimed at implementing the government’s Intellectual Property Strategy can be found here.

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