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Supreme Court of Canada: Intellectual Property Appeals from the Federal Court of Appeal

The following cases are active before the Supreme Court of Canada as appeals from the Federal Court of Appeal. This list is automatically generated daily. Please contact me if you notice any errors or inconsistencies.

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[Listing generated on February 22, 2012]

Proceedings waiting for rulings

The following appeals from the Federal Court of Appeal relating to intellectual property are awaiting judgment from the Supreme Court of Canada.

SCC File No. Status Style of Cause FCA File No. Excerpt from FCA Decision
33800 Heard 2011-12-08 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, et al. A-514-07 2010 FCA 123: This application for judicial review challenges an aspect of the decision rendered by the Copyright Board (the Board) on October 18, 2007. In this decision, the Board applied the exception in section 29 of the Copyright Act, R.S.C. 1985, c. C-42 (the Act) to the application to certify a tariff submitted by the Society of Composers, Authors and Music Publishers of Canada (SOCAN) in respect of the offer made to consumers to listen by way of a preview to excerpts of musical works.
33888 Heard 2011-12-07 Province of Alberta as represented by the MInister of Education, et al. v. Canadian Copyright Licensing Agency Operating as "Access Copyright" A-302-09 2010 FCA 198: Under the Copyright Act, R.S.C. 1985, c. C-42 (the Act), people can make non-infringing use of copyrighted material provided the use is made for an allowed enumerated purpose and is fair. This practice is known as fair dealing.
33921 Heard 2011-12-08 Entertainment Software Association, et al. v. Society of Composers, Authors and Music Publishers of Canada A-521-07 2010 FCA 221: This is the last in the series of applications for judicial review generated by the Copyright Board’s (the Board) decision with respect to music on the Internet. This application is brought by the publishers of entertainment software who take issue with a number of the Board’s conclusions. The Board’s decision as to the liability of internet game sites to a tariff is found in its decision dated October 18, 2007 (the Tariff 22.A Decision) while the specifics of the tariff itself are found in the Board’s decision dated October 24, 2008 (the Tariff 22 B to G Decision), specifically, that portion of the decision dealing with Tariff G – Game Sites. On this application, only the Tariff 22.A Decision is in issue.
33922 Heard 2011-12-08 Rogers Communications Inc., et al. v. Society of Composers, Authors and Music Publishers of Canada A-519-07 2010 FCA 220: These three applications are among a number of applications for judicial review arising out of the Copyright Board’s (the Board) decisions relating to the Society of Composers, Authors and Music Publishers of Canada’s (SOCAN) application for a tariff with respect to, broadly speaking, the performance and communication of musical works on, or by means of, the Internet. The issue in this application is, simply put, whether the transmission of a musical work to an individual by an on-line music service is a communication of that work to the public by telecommunications within the meaning of paragraph 3(1)(f) of the Copyright Act, R.S.C. 1985, c. C-42 (the Act). The Board found that they were, a reasonable conclusion, in my view, and as a result, I would dismiss each application for judicial review.
33951 Leave granted 2011-05-05 Teva Canada Limited v. Pfizer Canada Inc., et al. A-292-09 2010 FCA 242: This is an appeal by Novopharm Limited (the “appellant”) from an Order of Kelen J. of the Federal Court (“the Judge”), 2009 FC 638, dated June 18, 2009 (the “Decision”), which, pursuant to the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, prohibited the Minister of Health from issuing a Notice of Compliance (a “NOC”) to the appellant for a generic version of sildenafil tablets (marketed commercially by the respondents as Viagra) until the expiry of the respondents’ Canadian Patent No. 2, 163,446 (the “ ‘446 patent”). For the reasons that follow, I conclude that the Judge made no reviewable error in concluding as he did.
34210 Heard 2011-12-07 Re:Sound v. Motion Picture Theatre Associations of Canada, et al. A-433-09 2011 FCA 70: This is an application for judicial review of a decision of September 16, 2009, by the Copyright Board wherein it answered the following question in the negative:
The question arose after the applicant, Re:Sound, filed two proposed tariffs for the performance in public and communication to the public by telecommunication of published sound recordings. Both tariffs were objected to: (1) tariff 7, which targets the use of sound recordings embodied in a motion picture performed by a motion picture theatre; and (2) tariff 9, which targets the use of sound recordings in programs broadcast by television services.
34231 Leave granted 2011-09-29 Cogeco Cable Inc., et al. v. Bell Canada, et al. A-113-10 2011 FCA 64: In Broadcasting Order CRTC 2010-168, the Canadian Radio-Television and Telecommunications Commission referred the following question to this Court pursuant to subsections 18.3(1) and 28(2) of the Federal Courts Act: Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?

Application for leave from the FCA

Applications for leave to appeal from the Federal Court of Appeal have been filed on the following intellectual property related proceedings.

SCC File No. Status Style of Cause FCA File No. Excerpt from FCA Decision
34430 Application for leave filed 2011-09-12 Ministry of Commerce and Industry of the Republic of Cyprus v. International Cheese Council of Canada A-284-10 2011 FCA 201: This is an appeal of an order by Justice de Montigny of the Federal Court (the “Judge”) dated June 30, 2010, and bearing the citation 2010 FC 719 (the “Order”), dismissing an appeal of a decision by the Registrar of Trade-marks (the “Registrar”) rendered on April 29, 2008 (the “decision”) allowing the respondent’s opposition to the appellant’s registration of the certification mark of HALLOUMI cheese (the “Certification Mark”) with respect to application No. 795,511.
34459 Application for leave filed 2011-09-28 Corlac Inc., et al. v. Weatherford Canada Ltd., et al. A-282-10 2011 FCA 228: This is an appeal from the judgment of Justice Phelan of the Federal Court (the judge) in an infringement action and counterclaim in relation to Canadian Letters Patent No. 2,095,937 (the ’937 Patent) issued on December 22, 1998 and titled “Sealing Assembly for Rotary Oil Pumps and Method of Using Same.”
34481 Application for leave filed 2011-10-04 Lojas Renner S.A. v. Tucows.Com Co. 2011 ONCA 548:  
34600 Application for leave filed 2012-01-04 Schering Corporation, et al. v. Apotex Inc., et al. A-389-09 2011 FCA 300: These reasons relate to Court File Numbers A-390-09, A-386-09, A-389-09 and A-387-09. The original of the reasons will be filed in A-390-09, the lead file, and copies will be placed in the other three files.
34627 Application for leave filed 2012-01-25 Merck Frosst Canada & Co. v. Apotex Inc. A-154-10 2011 FCA 329: Merck Frosst Canada & Co. appeals from the judgment of the Federal Court (per Justice O’Reilly): 2010 FC 287.
The Federal Court ruled in favour of Apotex Inc’s action against Merck under section 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, as amended. The quantum of damages to be awarded to Merck is to be determined at a later hearing.
34669 Application for leave filed 2012-02-14 Apotex Inc. v. Nycomed Canada Inc., et al. A-172-11 2011 FCA 358: These are two appeals – heard together but not consolidated – involving Apotex Inc. as the appellant (Apotex or the appellant) which both raise the same issue, namely whether paragraphs claiming disgorgement profits in Apotex’ statements of claim, pled in conjunction with others seeking damages pursuant to section 8 of the Patented Medicines (Notice of Compliance) Regulations, S.O.R./93-133 (PM(NOC) Regulations), were properly struck by Prothonotaries Milczynski (A-173-11) and Tabib (A-172-11), as confirmed by Justice Heneghan of the Federal Court (the Federal Court judge) by decisions issued on April 18, 2011.
34670 Application for leave filed 2012-02-14 Apotex Inc. v. Eli Lilly Canada Inc. A-172-11 2011 FCA 358: These are two appeals – heard together but not consolidated – involving Apotex Inc. as the appellant (Apotex or the appellant) which both raise the same issue, namely whether paragraphs claiming disgorgement profits in Apotex’ statements of claim, pled in conjunction with others seeking damages pursuant to section 8 of the Patented Medicines (Notice of Compliance) Regulations, S.O.R./93-133 (PM(NOC) Regulations), were properly struck by Prothonotaries Milczynski (A-173-11) and Tabib (A-172-11), as confirmed by Justice Heneghan of the Federal Court (the Federal Court judge) by decisions issued on April 18, 2011.

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