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 October 23, 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
39222 Hearing scheduled for 0000-00-00 York University, et al. v. The Canadian Copyright Licensing Agency (“Access Copyright”), et al. A-259-17 2020 FCA 77: Access Copyright sued York to enforce the interim tariff, seeking various remedies including royalties as provided in the tariff. York counterclaimed, seeking a declaration that all copying which fell within the terms of the Guidelines constituted fair dealing … As a result, I conclude that a final tariff would not be enforceable against York because tariffs do not bind non-licensees. If a final tariff would not be binding, the conclusion can hardly be different for an interim tariff. … As a result, the validity of York’s Guidelines as a defence to Access Copyright’s action does not arise because the tariff is not mandatory and Access Copyright cannot maintain a copyright infringement action. Therefore, I would allow York’s appeal from the judgment of the Federal Court [see 2017 FC 669] with costs, set aside the Federal Court’s judgment, and dismiss Access Copyright’s action with costs. … The prayer for relief of York’s counterclaim seeks a declaration that “any reproductions made that fall within the guidelines set out in York’s “Fair Dealing Guidelines for York Faculty and Staff (11/13/12)” … constitute fair dealing pursuant to sections 29, 29.1, or 29.2 of the Copyright Act”. It is apparent from this that the Guidelines are the heart of York’s position in this litigation. Given the relief which York sought, it was incumbent on it to justify the Guidelines themselves so as allow the Court to declare that reproductions that fall within the Guidelines are fair dealing. It has not done so.

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
39099 Application for leave filed 2020-04-14 The Kennedy Trust for Rheumatology Research, et al. v. Hospira Healthcare Corporation, et al. (Infliximab*) A-338-18 2020 FCA 30: The principal decision under appeal (2018 FC 259 dated March 7, 2018) addressed the merits of the action and the counterclaim, and concluded that the 630 Patent was valid and infringed. … For the reasons set out below, I would allow the appeal on the merits, and remit the matter to the Federal Court for reconsideration of certain issues. … Accordingly, the finding of infringement under the Saccharin doctrine was limited to those who conduct activities in the territory of the patent, activities such as importing, selling or using the product in question. … the knowledge at issue in the third prong of the test [for inducement] is knowledge that the influence is being exercised, rather than knowledge that the resulting activity will be an infringement. … In light of section 28.3 of the Patent Act and the applicable jurisprudence and commentaries,I conclude that it is an error to exclude from consideration prior art that was available to the public at the relevant date simply because it would not have been located in a reasonably diligent search. … It should be noted that, whereas being “more or less self-evident to try to obtain the invention”(per Sanofi at para 66) is a requirement for obviousness to try, being “more or less self-evident that what is being tried ought to work” (per Sanofi at para 69) is not a requirement but merely a factor to be considered. … I would remit this matter to the Federal Court for reconsideration of the issues of anticipation and obviousness in light of these reasons.
39150 Application for leave filed 2020-05-12 Pfizer Canada ULC v. Pharmascience Inc. (Pregabalin*) A-405-19 2020 FCA 55: In the action, Pharmascience seeks damages from Pfizer for the sales that it lost when Pfizer’s application for prohibition under the Regulations, which was ultimately unsuccessful, kept Pharmascience out of the market for pregabalin, a pain medication marketed by Pfizer as LYRICA. … Pharmascience brought a motion for a summary trial on Pfizer’s defences of patent infringement and ex turpi causa. The Federal Court granted the motion (2019 FC 1271, O’Reilly J.), and determined that these defences were not relevant to Pharmascience’s claim for damages. In doing so, the Federal Court relied (at paragraphs 21 to 24) on the principle, which it drew from the case law, that “the but-for world should reflect, to the extent possible, what happened in the real world.” … Indeed, in our view the Federal Court could and should have gone farther than it did, and treated as binding and dispositive the Supreme Court’s decision in Sanofi-Aventis v. Apotex Inc., 2015 SCC 20, [2015] 2 S.C.R. 136. … Therefore, the appeal will be dismissed with costs.

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Canadian Intellectual Property