Patent Claim Construction: A Review of Canadian and Common-Law Jurisprudence

Abstract

Far from being a contemporary exercise, the doctrine of patent claim construction has evolved over the years to deal with the challenges posed by patent monopoly. Through this exercise, Courts can ascertain the limits of the monopoly defined by patent claim.2 Courts will interpret claim to ascertain the meet and bound of the patent; paying attention to the invention description, functions, and essential elements. A review of Canadian patent case laws shows the purposive approach laid down in Free World Trust v. Electro Sante Inc. appears to have harmonized the previous literal and substantive approach to claim construction. However, the UK Supreme Court decision in Kirin-Amgen Inc. et al v. Hoescht Marion Roussel Ltd. at el that applied EU law to distinguish Catnic Components Ltd. v. Hill & Smith Ltd; coupled with the ongoing “Brexit” exercise, put the future of UK claims construction in suspense.