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COVID-19: Canadian Government Can Now Use Patented Inventions to Respond to the Public Health Emergency

In response to the COVID-19 pandemic, the government of Canada quickly gave itself the authority to use and even sell inventions that have been patented by others, to the extent necessary to respond to the public health emergency. Bill C-13 entitled “An Act respecting certain measures in response to COVID-19” received Royal Assent on March 25, 2020 (see here), which means it is in force.

Part 12 of Bill C-13 contains provisions that amend the Patent Act to allow the Government “to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency”. Upon receipt of a granted application from the Commissioner, the Government will be authorized to use an invention for up to one year. The amendments make the Government’s actions immune from a patent infringement suit. The Commissioner has the power to authorize the Government’s use of patented inventions until September 30, 2020.

In order to be eligible to use the patented invention, the Government must make an application to the Commissioner describing the patented invention it wishes to use and identifying the public health emergency for which the invention is necessary. The Commissioner must grant the application and notify the patentee. The provisions do not identify a time frame in which this notification must be made.

The new provisions also state that the Government must pay the patentee “any amount that the Commissioner considers to be adequate remuneration in the circumstances” for use of the invention. When determining this amount, the Commissioner must take into account the economic value of the authorization and the extent to which the Government makes, constructs, uses or sells the invention.

The amendments allow for the Federal Court to make an order on application of the patentee requiring the Government to “cease making, constructing, using or selling the patented invention in a manner that is inconsistent with the authorization granted”. There is no provision in the amendments that allow for judicial review of the Commissioner’s granting of an application or its decision regarding compensation to patentees should their invention be used by the Government in response to a public health emergency although such rights likely exist under the Federal Courts Act. If and how these broad new powers will be used by the Government remains to be seen.