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European Biopharmaceutical Review

The Baker Case and Eight-Part Test for Considering Disclosure by Prior Use or Sale

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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By Nika V Ketis, Lawyer at Bennett Jones

Dr Nika V Ketis practices corporate and commercial, intellectual property and technology law (with a focus on patents, registration, licensing and enforcement) as an Associate at Bennett Jones, and as a member of the Law Society of Ontario. Her practice focuses on the biotechnology, university, not-for-profit and health care sectors.

Dr Ketis currently serves as Chair of the Education Committee of Toronto Biotechnology Initiative (TBI), serves on the IPIC (Intellectual Property Institute of Canada) Licensing Committee and serves on the Steering Committee for the National Diploma Program in Biotechnology of the Biotechnology Human Resource Council (BHRC).

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Nika V Ketis
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