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This article was co-authored by Danielle St-Jean.
Can a company working outside of Canada infringe a Canadian patent? The answer may surprise you. Who is at risk depends on how the patent is written and what each party does. Even if your company is based abroad, you could still be liable for patent infringement in Canada. Do not assume you are safe just because of where you are located.
Canadian patents have geographic limits. The Federal Court of Appeal recently confirmed it. Under Canada’s Patent Act, a patent owner has the exclusive right to make, construct, use, and sell the patented invention in Canada. These rights usually stop at the border.
But be careful. Even if your company is based and works outside Canada, it can still be liable for Canadian patent infringement. Additionally, your Canadian business partners could also face legal troubles because of what you do.
Product claims are infringed by the making, using or selling in Canada
In Proslide Technology v Whitewater West Industries,1 the Federal Court of Appeal ruled that design and research activities in Canada alone do not infringe a patent for a physical product. However, even if a product’s design or development does not infringe, subcontractors or customers who make, use, or sell the product may still be liable.
The Proslide case involved a global supply chain for water slides. The defendant, Whitewater, is based in Canada. It does many things in Canada, including design, detailed CAD work, mechanical specifications, mould inspection, and supervision of installation. However, it uses subcontractors to manufacture products outside Canada. None of the products at issue were “physically manufactured, assembled or used in Canada.”2
The Court of Appeal rejected the patent owner’s argument that there should be infringement because there was a “real and substantial connection” to Canada. The patent owner’s argument was based on the fact that all development work, except physical manufacturing, happened in Canada. However, the court refused to apply the copyright law principle of “real and substantial connection,” which can lead to infringement.3
The court ruled that when a patent covers a physical object, the right to make or use the invention covers only the actual product—not designs or drawings of it. The practical lesson: Canadian research, design work, development and even supervision of foreign manufacturing does not infringe a Canadian patent for a physical product.
However, this case shows that subcontractors and customers can still face patent infringement risk. For example, if a subcontractor or customer made, imported, installed, or used a patented product in Canada, they would likely have infringed the patents, even if the company that designed the product did not.
Manufacturing companies and suppliers should not assume they are safe from infringing a Canadian patent. Products may have been previously designed in Canada without infringing any patent. But that does not protect the manufacturer, supplier or user.
Infringement by common design
Canadian law recognises “infringement by common design.” This happens when two or more parties working together leads to infringement of a patent.4 Until recently, this rule had not been applied in a patent case. In Adeia Guides v Videotron, the Federal Court said: “one cannot escape liability for patent infringement by virtue of subcontracting out a portion of the infringing act”.5
In Adeia, the patents covered systems and methods for television services. The defendant Videotron’s Helix TV used internet services from Comcast in the United States. Videotron and Comcast had a partnership to deliver Internet Protocol Television to Videotron’s customers in Canada using Comcast’s XFINITY X1 platform.6 This is an entertainment system that combines live TV, on-demand content, and streaming services.
Videotron did not perform every step of the infringing act itself. But it was still held liable for patent infringement based on common design with Comcast. This happened even though Comcast was not named as a defendant, and Comcast’s activities were not performed in Canada. The court ruled that both parties do not need to be named as defendants to find infringement by common design.7
For infringement by common design, parties must agree to a common action. By carrying out this action together, they infringe the patent.8 Whether common design exists depends heavily on the specific facts. Each situation must be looked at on its own.
For companies in international supply chains, trying to push all liability onto one main infringer will not protect other participants. Companies inside and outside Canada can be liable for patent infringement in Canada. This is true even if they are not involved in every part of the infringement.
Other ways to infringe a patent
Besides common design, Canada also recognises other types of cross-border infringement. These include the Saccharin doctrine and infringement by inducement.
Saccharin
Under Saccharin, importing, selling, or using9 a product in Canada can infringe a Canadian patent, even if the product was made abroad. This applies when the product was manufactured using a process or method patented in Canada. It does not matter if that process is not patented where the product was made.
Under the Saccharin doctrine, the company that imports or sells products in Canada usually faces the greatest risk. The Federal Court of Appeal confirmed that the Saccharin doctrine remains limited to parties that carry out activities in Canada, such as importing, selling, or using the product in Canada.10
A foreign manufacturer that does nothing in Canada is unlikely to infringe under the Saccharin doctrine. However, with infringement by common design now being applied, a foreign company may also be potentially liable in Canada. This can happen even if the foreign company does not directly import or sell the product. It may be enough if the company worked together with the Canadian importer or seller.
Inducement
A company can also be liable for patent infringement if it influences another party to infringe. This is called inducement. The company does not need to directly infringe the patent itself to be held liable for inducing infringement. A common example is selling kits. While the kits themselves may not infringe the patent, infringement happens when customers put the product together.11 The customer directly infringes by making or using the patented product, but the company selling the kits can also be held responsible.
Infringement by inducement is not limited only to kits or to patents claiming products. Courts have recognised that inducement can occur in cases involving use claims, such as a patented use of pharmaceutical compounds, or in cases involving method claims. Companies that provide instructions, guidance or support to parties located in Canada should ensure they are not at risk of patent infringement by inducement.
For patent owners: Protecting your rights in Canada
The same territorial rule that limits liability also shapes how patent owners protect their rights. Canadian patent rights only protect against making, building, constructing, using, and selling in Canada. A Canadian patent alone will not cover manufacturing or use that happens in other countries.
Many companies design products in one country, make them in another, and sell them in many places. For these companies, good protection requires a plan that covers multiple countries.
Patent owners do not need to focus only on the named manufacturer or seller when enforcing their rights. Through common design infringement, joint liability, or inducement, a patent owner can hold other companies in the supply chain responsible. This gives the patent owner more options to recover their losses or for seeking the infringers’ profits. They can also get court orders to stop all infringers.
In practice, it may often be enough for a patent owner to go after only Canadian-based infringers. Going after parties outside Canada may not be needed to stop the infringement or get compensation. This is true even if those parties could also be held liable.
However, going after a foreign company at the source of infringement may sometimes be more effective. This may be true even if it means proving a more complex common design or inducement case. It depends on what is the best way to stop the infringement or get compensation. Patent owners should look at the whole supply chain when deciding who to sue.
For companies that want to join the Canadian supply chain without having a direct presence in Canada, avoiding Canadian patent infringement risks is important for success. These companies should also consider protecting their own ideas in Canada. This can strengthen their position against competitors.
Read the original article on GowlingWLG.com
Footnotes
1. 2026 FCA 59.
2. 2026 FCA 59 at para 15.
3. 2026 FCA 59 at paras 42–45.
4. 2010 FC 361 at para 206.
5. 2025 FC 1725 at para 476.
6. 2025 FC 1725 at para 479.
7. See our further analysis of the Adeia decision.
8. 2025 FC 1475 at para 470.
9. See 2009 FC 991.
10. 2020 FCA 30 at paras 33–37.
11. See 1985 CanLII 6427 (FCA).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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