Daniel Davies
Updates
Intellectual Property
Federal Court continues trend of granting summary judgment in appropriate patent proceedings
Canada | 25 January 2021In a recent case, the Federal Court granted summary judgment in favour of the plaintiff in respect of its patent impeachment action. This decision further demonstrates the Federal Court's recent willingness to grant summary judgment in patent cases in appropriate circumstances. Accordingly, it appears that in certain cases, summary judgment may be a viable option to resolve patent disputes more expeditiously while avoiding the costs of a full patent trial.
Canadian courts show trend of awarding higher costs in IP litigation
Canada | 16 November 2020Canada's evolving costs regime in the IP litigation context raises important considerations for litigants. It is becoming more common, arguably the norm, for IP litigants in both the federal and provincial courts to recover significant costs awards. These enhanced cost consequences may amplify the significance of the strategic decisions that are made during the course of litigation, including, for example, whether to seek settlement and the appropriate time to do so.
Federal Court dismisses patent infringement action for delay
Canada | 20 January 2020The Federal Court recently dismissed an action for delay following a status review under Section 382.1 of the Federal Courts Rules where the proceeding remained at the documentary discovery stage with outstanding motions pending more than six years after the action had been commenced. The plaintiff's had alleged infringement of Canadian Patent 2,595,723 in respect of water treatment processes used in Cenovus's steam-assisted gravity drainage oil production facilities.
Accounting of profits remedy offers significant benefits to patent owners
Canada | 16 April 2018The availability of an accounting of profits in Canada as a remedy for patent infringement can offer significant benefits to patentees, including in cases involving infringing goods sourced from Canada that are being sold elsewhere. The availability of such a remedy and a number of other factors, including the ability to expedite proceedings and the lower cost of litigation, make Canada an attractive jurisdiction for patentees from the United States and elsewhere to litigate patent infringement matters.
Federal Court of Appeal comments on patent construction standard of review
Canada | 28 September 2015The Federal Court of Appeal recently opined that appellate courts should defer to trial court findings on patent construction in the absence of a "palpable and overriding error", when such findings are heavily dependent on expert testimony. This would reflect a departure from the 'correctness' standard of review that has traditionally been applied to patent construction.
Federal Court proposes significant initiatives to improve IP litigation
Canada | 03 August 2015The Federal Court of Canada has outlined several recommendations to further modernise and improve litigation practice and procedure before the court. They include proposed changes to both trial and pre-trial practice, with the aim of ensuring expeditious and less expensive determinations of disputes.
Interlocutory injunction in Federal Court trademark case — a sign of things to come?
Canada | 05 May 2015The Federal Court recently issued an interlocutory injunction in a trademark infringement case. This is the first reported decision of the Federal Court granting such an order in an IP case in years (outside the context of outright counterfeiting). It follows many informal signals from the court that it would be prepared to grant pre-trial injunctive relief in an IP case if there were suitable evidence of irreparable harm.
A year of significant change for Canadian IP law and practice
Canada | 09 February 2015Canada's IP laws underwent a number of changes in 2014 which transformed many of their fundamental concepts and related practices. Among other things, the Trademarks Act was extensively amended twice, while the Patent Act was amended to make it consistent with the international Patent Law Treaty.
Dow prevails over Nova in polymer patent suit
Canada | 20 October 2014The Dow Chemical Company has prevailed in a Canadian patent infringement suit against Nova Chemicals Corporation relating to Nova's manufacture and sale of its Surpass film-grade polymers. The Federal Court upheld the validity of Dow's Canadian Patent 2,160,705 and found that Nova's Surpass polymers infringed the patent.
Court issues practice notice on experimental testing for patent litigation
Canada | 24 March 2014The Federal Court of Canada has issued a notice to the profession clarifying an issue that frequently arises in patent litigation. It confirms that patent litigants intending to rely at trial on testing conducted for the purpose of the litigation must provide the adverse party with advance notice of the testing and an opportunity to attend.
Supreme Court provides guidance on application of 'fair dealing' test
Canada | 06 August 2012The Supreme Court of Canada recently considered whether the photocopying of textbook excerpts by teachers to distribute to students as part of course materials constitutes 'fair dealing'. A majority of the court concluded that the Copyright Board had made several errors in its analysis of the 'fairness factors', and thus the board's conclusion that the copying was "unfair" was not reasonable.
Federal Court grants prohibition order for anastrozole
Canada | 10 October 2011The Federal Court recently granted AstraZeneca an order prohibiting the minister of health from issuing a notice of compliance to Mylan Pharmaceuticals for a generic anastrozole product. Mylan alleged that the patent in issue was invalid for lack of utility and obviousness, but the court rejected the allegations and granted AstraZeneca's application for a prohibition order, with costs.
