Category Archives: Patents

Analysis, Canada, International, Patents

Artificial Intelligence not an “Inventor” under European Patent Law: Is Canada heading down the same path?

Close up of engineering drawing with electric motor

As reported in an earlier ANGLE post, we discussed how 2021 saw a number of patent office developments with regard to whether a non-human entity could be considered an inventor under various patent regimes.  Prior to 2021, several patent offices had considered this issue and found that A.I. could not be considered an inventor.  In 2021, however, an Australian Court found that a non-human “inventor” is not inconsistent with inventorship under Australian law and South Africa issued a patent designating an A.I. system as the inventor. 

It would appear at the end of 2021 that some patent offices were trending towards recognizing a non-human entity, like A.I. based technology, as an inventor. Could this trend continue?

Maybe not.  With a decision just before Christmas of 2021 from European authorities, any such trend may have been stopped in its tracks.

Continue reading »
Analysis, Canada, Patents

The 2022 PMPRB Outlook for Pharmaceutical Patentees in Canada

pharma pills

UPDATE: On April 14, 2022, the Minister of Health announced that the federal government will not proceed with amendments to the Patented Medicines Regulations introducing new pharmacoeconomic factors and requiring that price and revenue information be reported net of all adjustments. The federal government will proceed with amendments establishing a new basket of comparator countries, with a coming-into-force date of July 1, 2022. For more information, see our Life Sciences Bulletin on the Minister’s announcement.
_______________________

In December 2021, the Patented Medicine Prices Review Board (the “PMPRB”) and the Minister of Health issued two updates regarding the Regulations Amending the Patented Medicines Regulations (the “Amendments”) and the new PMPRB Guidelines (the “New Guidelines”). These notably include a further deferral of the coming-into-force date of the Amendments. The updates, along with the Federal Court of Appeal’s (“FCA”) July 2021 decision in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (“Alexion”), may have important implications for pharmaceutical patentees in Canada as they implement or revise their pricing strategy for 2022 and beyond.

Continue reading »
Analysis, Canada, Patents

Federal Court of Canada provides narrow interpretation of the scope of Patent Agent Privilege

law books

One does not need to be a legal scholar to know that confidential communications between lawyers and their clients for the purpose of seeking and giving legal advice are generally privileged.  The so-called “solicitor-client” privilege is a cornerstone of law and allows clients and their lawyers to freely discuss legal issues without unintended disclosures.  Thus, apart from certain exceptions, Canadian courts will not compel production of privileged communications such as emails, letters and reports exchanged between clients and their lawyers for the purpose of legal advice.

For years, this special treatment did not attach to communications between clients and their patent agents.  This was problematic because patent agents often provide equally strategic and sensitive advice and opinions in the specific area of patents.  As a result, it was common practice to channel such communications through lawyers to shroud these under solicitor-client privilege.

Continue reading »
Analysis, Canada, Patents

Quick overview of the state of patents for psychedelics

psychedelics

Psychedelics are a class of psychoactive substances that produce changes in perception, mood and cognitive processes. Also so known as “hallucinogens”, reference to psychedelics is commonly meant to include substances such as Psilocybin (a.k.a. “magic mushroom”), MDMA (a.k.a. “extasy”) and LSD (Lysergic acid diethylamide).

Likely following the lead of the ongoing legalisation of cannabis in Canada, many U.S. states and other countries, the recent years have seen unprecedented investments and an increasing interest in research, production, and supply of psychedelics, particularly for potential medicinal uses.

The present article aims to provide a brief overview of the current situation from a patent perspective and to discuss about patenting strategies for these substances.

Continue reading »
Industrial Design, Patents

Australia and South Africa find Artificial Intelligence “Inventor” compatible with Patent Law

woman in front of digital tech

Traditionally, an “inventor” in a patent application has been defined as a person who invented or discovered the subject matter of the invention. Until recently, it has not been necessary to consider whether a non-human entity could be considered an inventor.  With the development of artificial intelligence based technology (“A.I.”), we need to consider the issue. If we have reached a point where A.I. could independently invent or create protectable IP, could such an A.I. be listed as an inventor?[1]

To date, several patent offices considering this issue have found that A.I. cannot be considered an inventor.[2]  Two recent decisions may be showing a change in this trend.

In Stephen Thaler v Commissioner of Patents[3], the Federal Court of Australia is the latest to consider whether the definition of “inventor” excludes a non-human artificial intelligence. In a ground-breaking decision, the Australian Court found that a non-human “inventor” is not inconsistent with inventorship under Australian law. 

More recently, South Africa issued a patent designating an A.I. system as the inventor.  However, South Africa does not offer formal examination so the issue of whether A.I. systems are properly identified as inventors does not appear to have been considered.

It will be interesting to see what impact, if any, these decisions will have on Canadian patent law.

Continue reading »