Formalities for Confidentiality Orders Not Required for Trial Materials

On March 29, 2018 the Federal Court dismissed MediaTube’s motion challenging the confidentiality designations made by Bell Canada during and following the trial of its patent infringement action alleging Bell’s FibeTV services infringe Canadian Patent No. 2,339,477. During trial, Bell requested that certain documents be treated as confidential and MediaTube did not object. The Federal...
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Triple Multiplier Applied to Lump Sum Tariff Award to Dow in Patent Infringement Action against Nova

On August 8, 2017, Justice Fothergill issued his Order and Reasons awarding Dow lump sum costs in excess of $4.3 million dollars for the remedies phase of a patent infringement action. Background In the liability phase, Dow’s Canadian Patent No. 2,160,705 was found valid and infringed by Nova (2014 FC 844; aff’d 2016 FCA 216)....
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Should I Stay Or Should I Go? Federal Court Stays Re-Examination In Light Of Invalidity Action

On October 6, 2016, Justice Roy granted Camso’s motion to stay the re-examination of Camso’s 562 Patent until final judgment is rendered in an action in which the validity of the 562 Patent is being challenged on the same grounds as those raised in the re-examination. Re-examination Patent re-examination is provided for in sections 48.1...
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Notice and Notice: ISPs May Only Charge Reasonable Fees For Disclosing Identities Of Suspected Copyright Infringers

Sections 41.25 and 41.26 of the Copyright Act allow copyright owners to send notices of infringed copyright to ISPs, such as Rogers. These sections, introduced in 2015, require that ISPs maintain records in a manner that allows for the identification of suspected infringers, send notices to suspected infringers and keep the records in a manner...
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Ordinary Actions Of Corporate Officers Not Sufficient To Pierce Corporate Veil In Oilfield Patent Infringement Action

On February 13, 2017 the Federal Court of Appeal dismissed an appeal by NOV Downhole Eurasia Limited and Dreco Energy Services ULC who sought to amend their statement of claim in a patent infringement action by adding individuals as parties and adding a claim for joint and several liability. Two of the individuals sought to...
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First Impression for Internet Confusion Occurs At Search Results Page – BCCA

On January 26, 2017, the BCCA granted Vancouver Community College’s appeal and held that it’s passing off claim against Vancouver Career College had been established. The BCCA also remitted Vancouver Community College’s claim of breach of official marks to the trial court for fresh determination. Vancouver Community College alleged passing off by Vancouver Career College...
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Decision To Not File Evidence On Motion To Dismiss Sinks Prohibition Application

 On December 8, 2016 Prothonotary Aalto dismissed Valeant’s prohibition application against Apotex regarding metformin as an abuse of process. Apotex’s Notice of Allegation alleged, among other things, non-infringement and Apotex brought a motion under paragraph 6(5)(b) of the PM(NOC) Regulations to have the application dismissed for being an abuse of process. In support of its...
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Pharmascience Sleeping Like A Baby After Sublinox Patent Win

On December 9, 2016 Justice Manson released his Public Judgement and Reasons dismissing Meda’s application for a prohibition order regarding Pharmascience’s zolpidem product and Canadian Patent No. 2,629,988. Zolpidem is used for the treatment of insomnia and is marketed under the trade name SUBLINOX. The 988 Patent is generally directed to pharmaceutical compositions of zolpidem comprising ordered mixtures...
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Apotex’ Remedial Claims Based On Pfizer’s Viagra Patent Survive Another Attack

On November 18, 2016, Justice Nordheimer of the Ontario Superior Court of Justice dismissed Pfizer’s motion for leave to appeal a decision that dismissed, with two exceptions, Pfizer’s motion to strike various remedial claims made by Apotex (see our prior blog post here). Pfizer successfully asserted a patent covering sildenafil against Apotex under the PM(NOC)...
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A Quick Proceeding for Quick Couplers – Summary Trial Finding of Patent Non-infringement

On October 6, 2016, Justice Southcott dismissed Cascade’s patent infringement action against Kinshofer in a motion for summary trial. Kinshofer did not contest the validity of the 065 Patent but asserted a defence of non-infringement. Background The 065 Patent is directed to safety locking devices for quick couplers used with machines, like excavators, for quickly...
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Putting Your (Other) Best Foot Forward: Party May Introduce New Evidence or Argument in Subsequent Infringement Action

On September 19, 2016, Prothonotary Tabib granted, in part, Apotex’ motion to amend its statement of defence and counterclaim in an infringement action concerning Apotex’ Apo-Travoprost Z product. Apotex moved to add an allegation of anticipation, a defence of ex turpi causa based on anti-competitive conduct and two defences based on issue estoppel, abuse of...
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Qualifying Read-Ins Must Be “Reasonably Connected”

In Excalibre Oil Tools Ltd. v. Advantage Products Inc., API sought an order pursuant to Rule 289 of the Federal Courts Rules ordering that Excalibre include, as part of their read-ins, additional portions of the transcripts from the examination for discovery of API on the basis that these qualifying read-ins provide clarity, context and value to...
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Trial Judges Entitled To Some “Leeway” On Construction

On September 6, 2016, the Court of Appeal dismissed Nova Chemicals Corporations appeal from a judgment finding its SURPASS product infringes Canadian Patent No. 2,160,705 directed generally to polyethylene film products, such as plastic garbage bags and food wrapping. The 705 Patent was previously held valid and infringed Justice O’Keefe (see here). On appeal, Nova...
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Mövenpick’s “Marché & Wave” Trade-mark Withstands Richtree’s Opposition Appeal

On September 15, 2016, Justice Boswell dismissed Richtree’s appeal, pursuant to section 56 of the Trade-marks Act, from the decision of the Trade-marks Opposition Board that had rejected Richtree’s opposition to a trade-mark application filed by Mövenpick. In 2005 Richtree purchased the assets of Richtree Markets Inc. after it became insolvent. Prior to its insolvency,...
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Fears and Tears Insufficient to Warrant Interim Injunction

On March 24, 2016, Justice Russell dismissed TearLab’s motion for an interim injunction that sought to prevent I-Med Pharma Inc.  from marketing its i-Pen System prior to the disposition of TearLab’s motion for an interlocutory injunction. Canadian Patent No. 2,494,540 relates to systems for measuring the osmolarity of fluid samples. TearLab markets a system for...
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Real and Substantial – Connection to B.C. sufficient for Canadian Olympic Committee to maintain action against North Face

On February 16, 2016, Justice Dillon dismissed an application by VF Outdoor Inc. (“VF USA”) to dismiss or stay the action brought against it by the Canadian Olympic Committee on the grounds that the Court lacked territorial competence or that the Court should decline to exercise its jurisdiction. The VF Corporation owns various VF Group...
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Federal Court allows application to correct ownership after inadvertent error in assignment of patent rights

On January 19, 2016 Justice Shore granted an application under section 52 of the Patent Act to vary all entries in the Patent Office related to the ownership of Canadian Patent No. 2,406,340 by recording Gray Manufacturing Company, Inc. as the owner. Gray Automotive Products Co. employed the named inventor of the 340 Patent, William...
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Claims under the Trade-marks and Competition Acts insufficient basis to stay Ontario defamation action

On December 22 2015, Justice Perell dismissed a motion to temporarily stay a defamation action in the Ontario Superior Court of Justice until completion of an action in the Federal Court involving the same parties and similar issues (2015 ONSC 7980). Canadian Standards Association sued Gordon Knight and his corporation in the Federal Court for...
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