Federal Court of Canada Ruling Adds Uncertainty Over Question of Novelty and Disclosure

摘要

This case adds more uncertainty as to what constitutes a disclosure which makes the subject matter of the invention available to the public. Litigators will recall that the law is constantly changing on this crucial issue, and that any determination will ultimately depend on the specific facts in evidence. In some cases, credible witnesses and "clean hands" can overcome facts which might otherwise be considered to be disclosures. Litigators will also heed some other lessons from this case, as it is demonstrative of the danger of waiting too long to litigate a patent. Memories can fade, witnesses can become harder to track down, and facts can be more difficult to corroborate.