Though the scope of the doctrine of exhaustion, and the terminology used to describe it, is somewhat different in the contexts of copyrights, trade-marks, and patents, and in different jurisdictions, the concept and function are universal in intellectual property law.
In Canada, the applicability of the exhaustion doctrine to copyrights, trade-marks, and patents seemed clear. But one recent Supreme Court of Canada judgment casts doubt on the nature of exhaustion in respect of biotechnology patents. Monsanto v. Schmeiser is an outlier in Canadian intellectual property law. Various hypotheses might justify the Supreme Court’s distinct attitude toward the principle of exhaustion in Canadian patent law; however, none withstands the scrutiny of investigation. Thus, it is likely and appropriate that the Supreme Court of Canada will continue to use the concept of exhaustion in future cases.
This article, “Exhaustion of Intellectual Property Rights in Canada,” co-authored with former University of Ottawa graduate student Robert Tomkowicz, looks at the laws of different jurisdictions to demonstrate the common threads underlying the exhaustion doctrine of intellectual property rights.