The Perplexities of Patent Prosecution History: Procedure over Principle?

What is it about patent legislation? Speaking for the Supreme Court in 1981, Justice Dickson, later Chief Justice, said of disclosure provision Patent Act (now subsection 27(3)) that: [i]t gives impression a melange ideas gathered at random rather than an attempt to enunciate, clearly and concisely, governing principle or principles. This perhaps understandable that section product amendment over period many years. The language simply does not lend itself tight, literal interpretation. It is, should be treated as, parliamentary pronouncement, general terms. Nearly 40 years nothing much seems have changed. Take new 53.1 took effect 2019. was years, nor did present ideas. had only one idea. That reverse 2000 decision Free World Trust v Electro Sante Inc allow what transpires Office (“PO”) during processing application — its “prosecution history” potentially affect scope eventually granted. Subsection 53.1(1) could that: i.e., patent’s prosecution history relevant admissible aid construction claim specification. Instead drafting suffers from malady highlighted by Dickson. Its principles are concisely stated. They seem “secreted interstices procedure.” To give “a interpretation,” as some courts already done, therefore inappropriate. approach runs counter Interpretation Act’s direction all statutory provisions “deemed remedial” so require “such fair, large liberal interpretation best ensures attainment [their] objects.” legislation immune these strictures. An ineptly drafted may indeed sometimes need way Dickson 27(3), terms.”