Under Section 19 of the Canadian Patent Act, the federal or provincial governments (the “Crown”) can legally use your patented invention without your prior permission. This extreme measure is extremely rare, usually reserved for national emergencies or critical public health crises, and the government is legally required to pay you “adequate remuneration” for the use.
When you secure a patent in Canada, you are granted a 20-year monopoly to prevent anyone else from making, using, or selling your invention. However, there is a major exception built directly into Canadian law: the government. 🏬 In very specific and rare circumstances, the public interest supersedes an individual’s private intellectual property rights. This concept is legally referred to as “Crown Use,” allowing the government to step in and utilize a patented technology for the benefit of the country.
This power is primarily governed by Section 19 of the Patent Act. Whether it is a life-saving vaccine during a global pandemic, a critical component for military defence, or essential infrastructure technology, the Crown can authorize itself to bypass your exclusivity. It is important to understand that this is not an outright “theft” of your patent. The government does not take ownership of your patent, and they are constitutionally and statutorily obligated to compensate you for the privilege of using it.
Step-by-Step Process for Crown Use in Canada
The government cannot simply seize your intellectual property on a whim. The process of invoking Crown Use involves strict oversight by the Commissioner of Patents and the Federal Court. 📋 If your technology is ever targeted for public non-commercial use, here is how the process generally unfolds.
Step 1: Attempted Voluntary Negotiation
Under normal circumstances, before forcibly using a patent, the Canadian government must attempt to negotiate a voluntary licence with the patent holder on reasonable commercial terms. If you own a patent for a water-purification system needed in British Columbia, the province will first try to sign a standard contract with you. Crown Use is usually a last resort when negotiations fail or the patent holder refuses to supply the needed goods.
Step 2: Emergency Declaration (If Applicable)
In cases of a national emergency, extreme urgency, or public non-commercial use, the requirement for prior negotiation is entirely waived. 🚨 The federal Minister of Health, for example, can determine that an immediate crisis exists. In such scenarios, the government can authorize the immediate production or importation of the patented goods without telling you beforehand.
Step 3: Application to the Commissioner of Patents
The government must formally apply to the Commissioner of Patents to authorize the use. The Commissioner will specify the exact scope, duration, and conditions of the use. The use must be strictly limited to the purpose for which it was authorized, and the government cannot use this mechanism to manufacture products for commercial export or standard market competition.
Step 4: Determining Adequate Remuneration
Once the use is authorized, the government must pay you. 💵 If you and the Crown cannot agree on what constitutes “adequate remuneration” (fair payment), the Commissioner of Patents will step in to determine the amount. The Commissioner will consider the economic value of the authorization and normal market royalties. If you disagree with the Commissioner’s financial decision, you have the right to appeal to the Federal Court of Canada.
Crown Use vs Private Licensing
| Aspect | Crown Use (Section 19) | Private Voluntary Licensing |
|---|---|---|
| Permission Required? | No. The government can force the use without your consent. | Yes. You have total control over who uses your patent. |
| Compensation Rate | Decided by the Commissioner of Patents if disputed. | Dictated by whatever the free market will bear. |
| Exclusivity | Always non-exclusive; you can still use it yourself. | Can be exclusive or non-exclusive. |
| Frequency of Use | Extremely rare; reserved for crises or public needs. | Extremely common; standard business practice. |
How Much Does it Cost in Canada?
If your patent is subjected to Crown Use, you do not pay fees to the government, but you will almost certainly incur heavy legal expenses to protect your financial interests. 💲 As of May 2026, here are the costs you should anticipate in Canadian dollars (CAD):
- Hiring an IP Litigation Lawyer: You will need aggressive legal representation to argue for maximum remuneration. Hourly rates for top-tier IP lawyers in Toronto or Ottawa typically range from $500 to $900 CAD.
- Economic Valuation Experts: To prove the true market value of your patent to the Commissioner, you may need to hire forensic accountants or industry economists. These expert reports can cost between $10,000 and $30,000 CAD.
- Federal Court Appeals: If you are forced to appeal the Commissioner’s payout amount to the Federal Court, legal fees can easily exceed $50,000 to $100,000 CAD.
How Long Does the Process Take?
The timeline for Crown Use is characterized by a rapid beginning and a very slow resolution. ⏱ Because government bureaucracy is involved, patience is strictly required.
- Government Authorization: In an emergency, the Crown can authorize the use and begin utilizing your technology in a matter of days or weeks.
- Notification: The government must notify you “as soon as reasonably practicable” after the use begins.
- Remuneration Dispute: Fighting over the financial compensation with the Commissioner of Patents and the Federal Court can drag on for 2 to 5 years.
Frequently Asked Questions (FAQ)
Can a municipality or city force Crown Use?
Generally, no. Section 19 of the Patent Act specifies that this power is granted to the “Government of Canada or the government of a province.” Local municipal governments, such as the City of Vancouver or the City of Toronto, do not have the direct authority to invoke Crown Use independently.
Does the government take ownership of my patent?
Absolutely not. Crown Use acts like a forced, temporary licence. You retain full ownership of the patent, and you can continue to license it to private companies or manufacture the product yourself while the government is using it.
Is this the same as expropriation?
No, but they are related. Expropriation (Section 19.3 of the Patent Act) is an even more extreme measure where the federal government completely seizes and takes ownership of a patent, stripping you of your rights entirely. This is historically reserved for highly sensitive military inventions and is exceptionally rare.
Can the government use my trademark without permission?
No. Crown Use provisions in the Patent Act apply specifically to patents. The government cannot simply take over your brand name or logo, as those are protected separately under the Canadian Trademarks Act.
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