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2 October 2017Ron Dimock, Sangeetha Punniyamoorthy and Nikolas Purcell

Why you shouldn’t overlook Canadian IP litigation

While Canada is known for its natural resources and universal healthcare, it is often overlooked as a jurisdiction to litigate IP disputes.

This article sets out several reasons why this oversight is unwarranted. Owing to a market approval regime for pharmaceuticals similar to the Hatch-Waxman Act in the US, as well as the heavy reliance Canada’s healthcare system places on generic pharmaceuticals, Canadian courts are tried and tested when it comes to resolving complex patent and other IP disputes.

Canada’s strength in this area is largely the result of the chief forum for IP disputes: the Federal Court of Canada. Since its inception almost 50 years ago, the Federal Court has had near-exclusive jurisdiction over IP matters. This has resulted in court practices that are tailored to, and a judiciary familiar with, IP litigation. Beyond the effective forum of the Federal Court, the available remedies and the comparatively lower expense associated with litigation make Canada an ideal jurisdiction when considering where to litigate IP matters.

The Federal Court of Canada

Nearly all IP disputes are litigated in the Federal Court due to the court’s statutory grant of jurisdiction over patents, trademarks, and copyright. While a party may choose to bring proceedings in provincial superior courts, certain forms of relief are within the exclusive jurisdiction of the Federal Court (eg, a declaration of patent invalidity or expungement of a trademark registration).

The added benefit of the Federal Court is its unitary and broad jurisdiction which extends to all provinces and territories. The nature of this jurisdiction prevents forum disputes and provides litigants with relief across Canada.

The Federal Court’s long-standing jurisdiction over IP matters, coupled with the rise of increasingly complex litigation, has required the court to develop several procedures and practices to effectively and efficiently resolve IP disputes. These include:

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