The 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.
The 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.
The 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.
The 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.
Canada'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.
The 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.
The 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.
The 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.
The 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.