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This enactment amends the Patent Act as a result of the rulings of the
Dispute Settlement Body of the World Trade Organization in
Canada - Patent Protection of Pharmaceutical Products WT/DS114,
a case brought by the European Communities and their member States
and decided on April 7, 2000, and in Canada - Term of Patent
Protection WT/DS170, a case brought by the United States and decided
on October 12, 2000.
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The ruling in the Pharmaceutical Products case was implemented
by the repeal of the Manufacturing and Storage of Patented Medicines
Regulations, SOR/93-134. This enactment repeals the now obsolete
provisions of the Act which authorized the making of those regulations.
The implementation of the ruling in the Term of Protection case requires
amendments to sections 45, 78.1, 78.2, 78.4 and 78.5 of the Act.
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Clause 1: Section 45 reads as follows:
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45. Subject to section 46, the term limited for the duration of every
patent issued under this Act on the basis of an application filed before
October 1, 1989 is seventeen years from the date on which the patent is
issued.
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Clause 2: (1) Subsections 55.2(2) and (3) read as
follows:
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(2) It is not an infringement of a patent for any person who makes,
constructs, uses or sells a patented invention in accordance with
subsection (1) to make, construct or use the invention, during the
applicable period provided for by the regulations, for the manufacture
and storage of articles intended for sale after the date on which the term
of the patent expires.
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(3) The Governor in Council may make regulations for the purposes
of subsection (2), but any period provided for by the regulations must
terminate immediately preceding the date on which the term of the
patent expires.
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(2) The relevant portion of subsection 55.2(4) reads as
follows:
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(4) The Governor in Council may make such regulations as the
Governor in Council considers necessary for preventing the
infringement of a patent by any person who makes, constructs, uses or
sells a patented invention in accordance with subsection (1) or (2)
including, without limiting the generality of the foregoing, regulations
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Clause 3: Sections 78.1 and 78.2 read as follows:
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78.1 (1) Applications for patents in Canada filed before October 1,
1989 shall be dealt with and disposed of in accordance with the
provisions of this Act as they read immediately before that date and
section 38.1 as it read immediately after this section came into force.
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(2) Subject to section 78.5, any matter arising on or after October 1,
1989 in respect of a patent issued before that date shall be dealt with and
disposed of in accordance with the provisions of this Act as they read
immediately before that date and section 38.1 as it read immediately
after this section came into force.
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78.2 Subject to section 78.5, any matter arising on or after October
1, 1989 in respect of a patent issued on or after that date on the basis of
an application filed before that date, shall be dealt with and disposed of
in accordance with the provisions of this Act, other than section 46, as
they read immediately before that date, and with sections 38.1, 45, 46
and 48.1 to 48.5 as they read immediately after this section came into
force.
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Clause 4: Sections 78.4 and 78.5 read as follows:
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78.4 (1) Applications for patents in Canada filed on or after October
1, 1989, but before this section came into force, shall be dealt with and
disposed of in accordance with
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(a) subsection 27(2) as it read immediately before this section came
into force; and
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(b) the provisions of this Act, including subsection 27(2), as they
read immediately after this section came into force.
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(2) Any matter arising in respect of a patent issued on the basis of an
application filed on or after October 1, 1989, but before this section
came into force, shall be dealt with and disposed of in accordance with
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(a) subsection 27(2) as it read immediately before this section came
into force; and
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(b) the provisions of this Act, including subsection 27(2), as they
read after this section came into force and as amended from time to
time.
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78.5 The provisions of this Act that apply as provided in subsection
78.1(2) and section 78.2 shall be read subject to any amendments to this
Act coming into force
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(a) after October 1, 1989 and before this section came into force; or
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(b) after this section came into force.
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