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Paul Daly, 2022 85-1 Saskatchewan Law Review, 2022 CanLIIDocs 1412
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Proportionality: Constitutional Rights and their Limitation is the most comprehensive and authoritative account of the vast literature on proportionality and would be indispensable to anyone interested in the field. Barak evaluates several justifications for the use of proportionality and several defences of proportionality against its critics. This review article concentrates on one such defence: viewing proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. We identify several prominent recent writers, Barak among them, who represent a shift in the literature on proportionality towards a justification-based approach, and assess their rationales for the duty of the government to give justifications and provide reasons for its actions. However, we claim that those rationales do not necessarily support proportionality and that a more categorical approach, such as ‘exclusionary reasons,’ follows just as much from the ideas underlying justification and provides a better anchor for proportionality.
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Lametti, D. (2020). Destination. McGill Law Journal, 66(1), 47–51. https://doi.org/10.7202/1082037ar
An article from McGill Law Journal / Revue de droit de McGill, on Érudit.
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Un article de la revue Revue du notariat, diffusée par la plateforme Érudit.
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In Canada, like the USA, exclusions to patentable subject matter are driven primarily by the courts. Two recent decisions by the Canadian Patent Appeal Board (one on patentability of business methods and the other on the patentability of methods of medical treatment) have highlighted the inherent difficulty of crafting exclusions to patentable subject matter grounded not on legislative intent but on judicial activism.Courts, patent examiners, and the patent appeal board should be slow to deny patents where their subject matter is considered ineligible; rather patent applications should be assessed by the traditional criteria of patentability (namely, novelty, inventiveness, and utility). If the subject matter can be made to fit within the definition of ‘invention’ (even if slightly uncomfortably), the courts should aim to ‘breathe life’ into the bare, sometimes dated, words of the patent statute. Since the patent statutes are drafted with a view to the unforeseen, any judicial interpretation of the word ‘invention’ must give deference to this vision. A theory of subject-matter eligibility is also proposed.
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“No one has advanced a just and logical reason why reward for service to the public should be extended to the inventor of a mechanical toy and denied to the genius whose patience, foresight, and effort have given a valuable new [discovery] to mankind” (Katopis CJ. Patents v patents: policy implications of recent patent legislation. St John’s Law Review 1997;71:329). The law around the world permits the granting of patents for drugs, medical devices, and cosmetic treatment of the human body. At the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds. Is there any logical justification for this distinction? Are methods of medical treatment not as vital to the health or even to the life of a patient as drugs or medical devices? Why is a cosmetic result patentable and a curative result not?
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