U.S. or Canada for Patent Enforcement?

According to an article by Canadian attorneys Andrew M. Shaughnessy and Andrew E. Bernstein, in addition to construing claims more broadly, Canada has no existing doctrines of patent abuse or inequitable conduct. Moreover, there are no jury trials or Markman hearings and the damages received may be considerably higher.

Canadian patent law's reliance on purposive interpretation, and the absence of prosecution history estoppel means that Canadian courts typically interpret patent claims more generously than their US counterparts. Broader interpretation of claims means Canada provides more protection for inventors, as a finding of infringement is more likely. Moreover, there are no jury trials or Markman hearings and the damages received may be considerably higher.

Canadian patent cases are also tried by judges, whereas in the US factual issues related to infringement and validity are often decided by juries. Though the jury issue has received much attention, the authors see the most significant differences between Canada and the US in the discovery process. The potentially astronomical cost of US discovery is a factor that motivates parties to settle, or greatly narrow, their cases. Canadian discovery, which is a more streamlined process, is much less arduous in terms of both cost and time.