Supreme Court of Canada: Intellectual Property Appeals

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

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[Listing generated on April 3, 2020]

Proceedings waiting for rulings

The following intellectual property appeals are awaiting judgment from the Supreme Court of Canada.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision

Application for leave

Applications for leave to appeal have been filed on the following intellectual property related proceedings.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision
38844 Application for leave filed 2019-10-22 Georgetown Rail Equipment Company v. Tetra Tech EBA Inc. A-69-18 2019 FCA 203: This appeal concerns the validity and potential infringement of two patents: one which discloses a system and method for inspecting railroad track, Canadian Patent 2,572,082 (082 Patent), and one which discloses a system and method for determining rail seat abrasion of a railroad track, Canadian Patent 2,766,249 (249 Patent). … For the reasons that follow, I conclude that the Federal Court erred in law by failing to consider and analyze how the skilled worker would have applied the common general knowledge to the prior art. Had the Federal Court performed this exercise, it would have found that the differences between the prior art and the claims of the 082 Patent could be bridged by the skilled worker applying only the common general knowledge identified by the Court. I also conclude that the Federal Court did not err in its conclusion that the application of a tilt correction factor was not an essential element of the patent claims at issue in respect of the 249 Patent. However, the Federal Court erred by failing to find that the claims in issue on infringement, claims 7, 11 and 18 of the 249 Patent, were invalid on the ground that they were obvious.
38846 Application for leave filed 2019-10-23 Human Care Canada Inc. v. Evolution Technologies Inc. A-425-18 2019 FCA 209: The appellant, Evolution Technologies Inc., and the respondent, Human Care Canada Inc., both supply mobility aiding devices. These include “rollators” – more colloquially, walkers with wheels. Human Care’s “Nexus” series of centre-folding, solid-seat rollators is a commercial embodiment of its Canadian Patent No. 2,492,392. Human Care brought an action in the Federal Court alleging that Evolution’s “Xpresso” rollators – also centre-folding with a solid seat – infringe claims 16 and 18 of its patent. … The Federal Court found in favour of Human Care: Human Care Canada Inc. v. Evolution Technologies Inc., 2018 FC 1302; supplementary judgment and reasons, 2018 FC 1304 (Elliott J.). … In my view, it is necessary to consider only the grounds of appeal relating to the claim element “tension rod means for distributing the weight.” … Since the “tension rod means” element is an essential element of the claims that Human Care asserted, this was fatal to the finding that the patent is infringed. For these reasons, which I develop below, I would allow the appeal.
39007 Application for leave filed 2020-01-09 Millennium Pharmaceuticals Inc., et al. v. Teva Canada Limited, et al. (Bortezomib*) A-301-18 2019 FCA 273: The appellants appeal from the judgment dated July 18, 2018 of the Federal Court (per Locke J.): 2018 FC 754. In its judgment, the Federal Court granted the respondent compensation for losses suffered during the time its version of a cancer-treating drug with the active ingredient bortezomib was kept off the market. The Federal Court found two of the appellants’ patents invalid for obviousness. On appeal, the appellants attack the finding of obviousness. They submit that the Federal Court did not follow the principles set out by the Supreme Court in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61, [2008] 3 S.C.R. 265. I reject the appellants’ submission. A fair reading of the Federal Court’s reasons from beginning to end in light of the record before it shows that it properly applied the proper legal test for obviousness.

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Canadian Intellectual Property