Bauer Hockey Helmets Avoid Infringement Injury
On May 7, 2018 the Federal Court granted MIPS action in part, findings its patent valid but not infringed by Bauer’s RE-AKT and RE-AKT 100 helmets while invalidating a single claim from the four Bauer patents at issue. Background MIPS, a global leader in sports helmet technology, alleged that Bauer’s RE-AKT and RE-AKT 100 hockey... Read More
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... Read More
Patent Infringers Cannot Elect Patentee’s Remedy
The Federal Court of Appeal dismissed Apotex’ appeal from a decision in which Apotex sought to elect the remedy that Bayer was entitled too after Apotex was found liable for patent infringement. The Decision Below Following a finding that Apotex infringed Bayer’s 426 Patent, Apotex argued that it should be entitled to elect Bayer’s remedy... Read More
Court of Appeal Clarifies Costs Framework in Copyright Class Action
On November 15, 2017, the Federal Court of Appeal issued its Reasons for Judgment in an appeal from an order that (1) granted the respondent’s motion for security for costs for a pending certification motion, (2) set the quantum of security at $75,000.00 and (3) awarded the respondent lump sum costs of $750.00 on the... Read More
Apotex Seeks Rehearing of NEXIUM Patent Validity Following Supreme Court’s Decision
On August 29, 2017 Apotex filed a motion with the Supreme Court of Canada, requesting a rehearing of the appeal and an amendment of the corresponding judgment in which the Supreme Court held that the promise doctrine is not the appropriate standard for assessing utility and that AstraZeneca’s 653 Patent is valid (2017 SCC 36;... Read More
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).... Read More
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... Read More
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... Read More
Teva Successful In Pregabalin Section 8 Damages Case Against Pfizer
On March 30, 2017 Justice Phelan issued his Public Reasons for Judgment awarding Teva damages under section 8 of the PM(NOC) Regulations after Pfizer prevented Teva from selling its pregabalin product. Pregabalin is used for the management of neuropathic pain and is sold by Pfizer under the trade name Lyrica. Justice Phelan applied what is... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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)... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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,... Read More
Charity not a “public authority” for purposes of official marks
On July 11, 2016 Justice Russell granted Starbucks (HK) Limited’s (not the coffee maker) application to review and set aside the Registrar’s decision to give public notice of the adoption and use of NOWTV as an official mark of Trinity Television Inc. Section 9(1)(n)(iii) of the Trade-marks Act provides that a “public authority” may request... Read More
Copycat Caught – Fair dealing is no defence when 100% of work is copied
On March 8, 2016, Justice Manson held that PS Knight Co Ltd infringed copyright in the Canadian Standards Association’s 2015 CSA Code. This is the latest decision in an ongoing legal battle between Knight and the CSA. See our previous blog post here. The CSA is an organization that develops standards. The CSA claims copyright... Read More
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... Read More
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... Read More
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... Read More
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... Read More