In a recent issue of the Lawyers Weekly, Professor Jeremy de Beer of the University of Ottawa criticizes the uncertainty in Canadian patent law and calls on the Supreme Court to clarify disclosure obligations.

The article discusses how in recent jurisprudence judges are trying to apply vague theories to practical disputes. A recent Federal Court of Appeal decision casts doubt on the status of many existing and pending patents. The Court is now suggesting that patents should include specific data proving that an invention is special. Furthermore, it has been stated that adjectives and adverbs are not enough to define that specialty. These increasing disclosure obligations in Canadian patents is argued to be shifting Canadian patent law out of alignment with other countries. Specifically, the article argues that this change is being effected without recognizing the practicalities of patent filings.

The article discusses the international Patent Cooperation Treaty, which is meant to establish uniform disclosure requirements across jurisdictions and argues that this streamlined process is being undermined by the inconsistent documentation standards and heightened disclosure obligation in Canadian patent law.

In conclusion, the article calls on the Supreme Court to clarify the disclosure obligations in Canadian patent law so as to resolve uncertainties. The only other alternative would be to test each and every suspect patent through a lawsuit, which would increase in litigation and be bad news for industry.

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