Seedlings Life Science Ventures, LLC v. Pfizer Canada ULC, 2021 FCA 154

Justice Gleason; Justice Locke; Justice Laskin - 2021-07-28

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The Federal Court (per Justice Sébastien Grammond, 2020 FC 1) concluded that Pfizer had not infringed the 935 Patent, and that the claims in issue were indeed invalid. ... For the reasons discussed below, it is my view that the present appeal should be dismissed and that the Federal Court’s conclusion that the claims in issue are invalid and not infringed should be affirmed. ... I am not convinced that the Federal Court made any palpable and overriding error in its application of the law to the facts in relation to overbreadth. Though the Federal Court made errors concerning some aspects of the law applicable to overbreadth, and considered some irrelevant factors, it also considered the correct legal principles. ... there is no impediment in the present appeal to Pfizer arguing that, in addition to the grounds of invalidity that the Federal Court found to apply, the claims in issue should also have been found invalid on additional grounds. ... Based on the Federal Court’s finding at paragraph 177 of the Reasons that a skilled person would not know how to make a device without the Omitted Elements, it follows that the 935 Patent does not meet this requirement. In my view, the Federal Court should have concluded that the claims in issue are invalid for insufficiency. ... Certainly, a patentee’s decision to license its invention may be a factor for a court to weigh when considering whether to permit a patentee to elect an accounting of profits. However, I disagree that such a decision should necessarily deny a patentee the right to elect. For the reasons set out above, I would dismiss the present appeal with costs.

Decision relates to:



Canadian Intellectual Property