Canmar Foods Ltd. v. TA Foods Ltd., 2021 FCA 7
Justice Pelletier; Justice de Montigny; Justice Rivoalen - 2021-01-20
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This is an appeal from a decision of the Federal Court (per Justice Manson) [see 2019 FC 1233] which granted the motion for summary judgment brought by TA Foods, thereby dismissing the patent infringement action of CanMar with respect to the ‘376 Patent. ... For the reasons that follow, I would dismiss the appeal. ... Whether or not discovery had taken place at this stage is not a factor contemplated by Rule 213, and ought not to be regarded as such. ... For all of the above reasons, I am of the view that the Judge should have refrained from taking into consideration the prosecution history of the corresponding US Application in the circumstances of this case. With respect to the broader issue of whether the prosecution history of a foreign application can ever be considered pursuant to section 53.1 of the Patent Act, as a result of incorporation by reference or otherwise, I wish to express no firm views on the matter. ... In particular, I find that there is no basis for interfering with the Judge’s conclusion that the respondent did not run an experimental test, but rather conducted a demonstration run in the normal course of commercial production.
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