This bulletin is current up to close of business on March 25, 2020. As circumstances remain fluid, please check with in with your usual Blakes contact for any updates.
On March 25, 2020, the Government of Canada (Government) passed the COVID-19 Emergency Response Act, which sets out details in respect of the Government’s response to the economic impacts of the COVID-19 crisis. The new legislation includes important amendments to Canada’s Food and Drugs Act and Patent Act that will enable the Government to authorize automotive and other manufacturers to redeploy their facilities to help meet the increasing demand for medical equipment such as ventilators and protective masks.
This bulletin summarises the key measures in the new legislation impacting auto manufacturers.
FOOD AND DRUGS ACT
PATENT ACT
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The Patent Act has been amended to require the Commissioner of Patents to authorize the Government, or any other person designated by the Minister of Health, to construct, use and sell a patented invention to the extent necessary to respond to a public health emergency on application by the Minister of Health.
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The non-transferrable authorization to produce the patented invention lasts for one year, but may be terminated earlier if the Minister of Health determines that the authorization is no longer necessary.
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The Government and any other person authorized to produce the patented invention must pay the patent owner an amount that the Commissioner of Patents considers adequate with regard to the economic value of the authorization and the extent to which the patented invention is produced.
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Producing and selling the patented invention is not an infringement of the patent, but the patent owner can apply to the Federal Court to stop production and sale if they are being done in ways that are inconsistent with the Commissioner of Patents’ authorization.
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Authorizations to produce patented inventions under this amendment can only be granted until September 30, 2020.
