Canadian Patent Litigation Decline Continues with Record Low Filings

• A record low of 21 new patent cases were filed in Canada's Federal Court in 2024.
• The decline is part of a broader trend that has seen IP cases represent only about 5 percent of the Federal Court's new filings.
• Practitioners describe the Federal Court as an exceptionally capable venue for patent disputes, with predictable timelines and consistent case management.
• The Canadian Patent Office's resistance to granting patents on computer-implemented inventions may be deterring filings.

Practitioners describe the court as an exceptionally capable venue for patent disputes, with predictable timelines, consistent case management, and no parallel validity challenges like inter partes review proceedings that complicate US patent litigation.

A record low of 21 new patent cases were filed in Canada's Federal Court in 2024, according to data tracked by Alan Macek, a partner at DLA Piper (Canada) LLP. This decline is not unique to the court, but rather part of a broader trend that has seen IP cases represent only about 5 percent of the Federal Court's new filings, down from roughly 20 percent two decades ago. The drop in patent litigation is well-documented among practitioners and has even caught the attention of the judiciary, with judges asking where all the patent cases have gone.

The dissonance between the decline in patent litigation and the capabilities of the Federal Court is striking. Practitioners describe the court as an exceptionally capable venue for patent disputes, with predictable timelines, consistent case management, and no parallel validity challenges like inter partes review proceedings that complicate US patent litigation.

The decline in patent filings is not due to any issues within the Federal Court itself. Rather, several factors outside of the courthouse are contributing to the drop. One factor is the dynamics of multi-jurisdictional patent disputes, where Canadian cases often take a backseat to US litigation. In some cases, Canadian litigators may feel they are simply generating transcripts and records for use in US proceedings.

Another issue is the commercialization gap in Canada. Fewer companies are scaling their innovations to a level worth defending, which means fewer patents are being filed and litigated in Canada. The Canadian Patent Office's resistance to granting patents on computer-implemented inventions is also a structural issue that may be deterring filings.

The decline in patent litigation has significant implications for rights holders with global portfolios. By overlooking Canada, these companies may be missing out on an exceptionally capable venue for patent disputes. The Patent Office's resistance to granting patents on computer-implemented inventions is a particular concern, as it may be deterring filings and limiting the scope of patent protection available in Canada.

Ultimately, the decline in patent litigation highlights the need for Canadian companies to scale their innovations and invest in research and development. By doing so, they can create more valuable patents worth defending and contributing to the country's economic growth.

Lawyers say rights holders with global portfolios are overlooking Canada, where a record low of 21 new patent cases were filed in 2024, despite the Federal Court being an exceptionally capable venue for patent disputes. This may indicate that Canadian companies are not scaling their innovations to a level worth defending, or that the Patent Office's resistance to granting patents on computer-implemented inventions is deterring filings.

Source: Original reporting via IPPractice