By Liz Gray and Natalie Raffoul
Last week, the Government of Canada passed an omnibus bill in response to the COVID-19 crisis that adds special powers to the Patent Act to ensure medical supplies, medication or vaccines can be produced locally.
Under the new Section 19.4(1), upon application of the Minister of Health, the Commissioner of Patents shall authorize the Government of Canada and any person specified in the application to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application.
The application must include the Chief Public Health Officer’s confirmation that “there is a public health emergency that is a matter of national concern”, as well as a description of that public health emergency (subsection (2)). Further, subsection (7) explicitly clarifies that the use or sale of a patented invention under such an authorization, in relation to a public health emergency, is not an infringement of the patent.
Upon granting the authorization, the patent holder would receive « adequate remuneration under the circumstances » as determined by the Commissioner of Patents.
Any authorizations made cease to have effect when the Minister of Health determines that they’re no longer needed, or one (1) year after grant, whichever comes first. Additionally, no authorization shall be granted after September 30, 2020.