Comparative Guides
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Results: 4 Answers
Patents
8.
Claim construction
8.1
When during a patent infringement action are claim terms defined by the tribunal?
 
Canada
Although claim construction is usually the subject of expert reports delivered by the parties prior to trial and is also addressed in the testimony of experts given at trial, in most cases the issue of claim construction is not determined until the trial judge releases his or her reasons for judgment after trial.

For more information about this answer please contact: Anthony Prenol from Blake, Cassels & Graydon LLP
8.2
What is the legal standard used to define claim terms?
 
Canada
The trial judge determines the meaning of claim terms based on the preponderance of evidence. Construction is to be determined as of the publication date of the patent (ie, the date when the patent application was laid open for public inspection). Claim language must be read in an informed and purposive way. Construction is objective, in that the words chosen by the inventor will be read in the sense that the inventor is presumed to have intended, and in a way that is sympathetic to accomplishment of the inventor's purpose expressed or implicit in the text of the claims. The public is entitled to rely on the words used, provided that those words are interpreted fairly and knowledgeably.

For more information about this answer please contact: Anthony Prenol from Blake, Cassels & Graydon LLP
8.3
What evidence does the tribunal consider in defining claim terms?
 
Canada
In most cases each party will submit evidence at trial from one or more experts as to the meaning that should be ascribed to terms in a claim. Although claims are to be construed in light of the entire specification, recourse to the specification is unnecessary where words in a claim are plain and unambiguous. It is not permissible to use the prosecution history in order to construe a claim.

For more information about this answer please contact: Anthony Prenol from Blake, Cassels & Graydon LLP