Canadian Risky Business: Why Fair and Predictable Patentable Utility is Critical to Investments and Innovation

Abstract

Investment in innovation and procurement of patent protection within any jurisdiction is justified by reliance upon fair and predictable patent protection. For new investment within any particular jurisdiction, innovators expect that historically well-settled legal doctrine pertaining to patents that conform to international norms and treaty obligations will remain consistent over time. Applicants also expect that countries will not “move the goalpost” of patentability requirements at some point after patent filing. Innovators have therefore been generally welcoming of patent harmonization which supports efficient and predictable patent protection in the multitude of jurisdictions in which they seek protection. Harmonization is predicated on the concept that an applicant can file a single application which will meet the patentability requirements of most major jurisdictions. Whether an invention relates to a life-changing new medicine or a mechanical device, it is required to possess utility for patentability. Indeed, as one of the most fundamental requirements in patent law, nearly major every jurisdiction excludes from patentability applications for inventions that lack patentable utility. As such, inventors must disclose a practical utility for their inventions upon filing their applications.