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| home > ebr > summer 2003 > the baker case and eight-part test for considering disclosure by prior use or sale |
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European BioPharmaceutical Review
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Section 28.2 (1) of the Canadian Patent Act states the following:
28.8(1) The subject-matter defined by a claim in an application for a patent in Canada (the "pending application") must not have been disclosed
(a) more than one year before the filing date by the applicant, or by a person who obtained knowledge, directly or indirectly, from the applicant, in such a manner that the subject-matter became available to the public in Canada or elsewhere;
In Canada, the following acts constitute anticipation, that is, prior disclosure of the claimed invention. A prior publication, public use, oral disclosure or sale (or offer to sell, if accompanied by sufficient detail of what is offered) are together referred to as 'anticipation'. In Canwell Enviro-Industries Ltd. v. Baker Petrolite Corp.1, the Federal Court of Appeal considered whether prior sale constituted anticipation and therefore invalidated the plaintiff's (Petrolite) patent. Rothstein J put forth an eight-part test that can be followed to determine if prior sale, occurring more than one year prior to the filing of a Canadian Patent invalidates the patent.
The Facts Surrounding the Case
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