March 17, 2010 by Keldeagh Lindsay
Keldeagh Lindsay is a J.D. candidate at Osgoode Hall and is taking the Patent Law course.
“In our system of patent law, the identity of the inventor is, for the most part, overshadowed by the issue of invention.” (Apotex v. Wellcome  1 F.C. 495, at para. 27)
The Patent Act does not define “inventorship”, but, as per s. 53(1) of the Act, the willful omission of the name of a co-inventor on a patent application is ground for voiding the patent. Whether two National Institutes of Health (NIH) researchers should have been named as co-inventors on the anti-HIV azidothymidine (AZT) patent was litigated in Apotex v. Wellcome  4 S.C.R. 153. To resolve the issue, the Supreme Court had to divine a definition from the rest of the Act and the common law.