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Tremendous confusion has revolved around the theory and application of the doctrine of essential elements in Canadian patent law ever since the Supreme Court of Canada first introduced the doctrine in Free World Trust c. Électro Santé Inc. In recent years, the Canadian Intellectual Property Office’s (CIPO) interpretation and application of the doctrine in its patent application examination guidelines has been the subject of considerable criticism from the Canadian patent profession. However, CIPO’s misapplication of the doctrine in recent years’ Patent Agent Qualifying Examination has received relatively little attention. This paper examines the application of the doctrine of essential elements in recent years’ Canadian Patent Agent Qualifying Examination. The analysis begins with a thorough and comprehensive review of the doctrine of essential elements under Canadian patent law. The analysis reviews the last ten years’ Canadian Patent Agent Examination, with a focus on recent years’ emphasis on the doctrine of essentiality. Despite the fact that the doctrine itself is still unsettled under Canadian law, the approach taken on recent years’ Patent Agent Exams is at best an ambiguous, and at worst an inaccurate application of the doctrine. This paper concludes by demonstrating that the concerns surrounding the doctrine of essentiality may be significant contributing factor to invalidity issues surrounding recent years’ Patent Agent Exams.
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Only registered Canadian patent agents may represent others before the Canadian Patent Office. To qualify as a registered Canadian patent agent, candidates must complete an apprenticeship followed by successfully passing the Canadian patent agent examination. This article analyzes the current regulatory framework for Canadian patent agents. Based on a theoretical, historical and international comparative analysis, this article demonstrates that the current Canadian regulatory model has lost sight of its purpose and is symptomatic of a greater crisis of legitimacy plaguing the Canadian patent agent profession. The article highlights the need for greater reform of the Canadian patent agent regulatory framework in order to better serve the intellectual property needs of the Canadian public. This article concludes with a series of comprehensive recommendations for reform of the current Canadian regulatory framework.
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The majority of proposals for international antidumping reform focus almost entirely on the relevant economic factors- consumer welfare losses and gains. Therefore, almost all proposals come to the exact same conclusion; in light of the enormous welfare losses suffered by domestic consumers, international antidumping law should be repealed in its entirety, or at least replaced by some form of international competition law. However, this analysis views the issue of antidumping law through the constructivist lens, and more specifically, the embedded liberalism view of international trade law. From this perspective, economics alone does not grasp the constitutive realities at play in antidumping law; domestic perspectives of legitimacy and fairness shape the contours of international antidumping law, and these constitutive norms espouse a view that protectionism, in a variety of different shapes and forms, is as much a part of international trade law as the traditional laissez-faire liberalist approach. This paper concludes that public interest inquiries, which form part of a small number of countries’ antidumping laws, embraces the constitutive realities at play in antidumping law and provide an opportunity for development of legitimate international antidumping reform. This paper examines the Canadian approach to public interest inquiry in antidumping, including recent developments. This paper concludes that the current Canadian experience demonstrates that embracing a public interest inquiry as part of antidumping reform may provide true hope for future development based on a embedded liberalism view of international trade relations.