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 February 28, 2024]

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
None

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
40929 Application for leave filed 2023-10-04 Guy Hamel, et al. v. Les Lames Nordik, et al. 2023 QCCA 874: This appeal relates to a judgment [see 2021 QCCS 3405] … which partially granted the request for a permanent injunction by the respondents … since it infringes Canadian patent 1,243,830 held by the respondents. The judge also declares said patent valid. … The main issue raised by this appeal is whether the Nordik Move system falls within the claim of the ‘830 patent, once properly construed. … For the reasons that follow, the Court concludes that the Nordik Move system does not fall within the scope of the claim of the ‘830 patent when it is correctly construed. … The fundamental error that transcends her decision as a whole, according to the appellants, is based on the fact that the judge based her reasoning on the objective, result or end of the invention rather than on the means of achieving it. In doing so, the court erred in identifying the essential elements that make up the claim and incorrectly applied the Improver test, which led it to disregard the clear content of the claim, thus creating a situation of unpredictability. This Court finds that the appellants are right, both as regards the elements forming the upper part of the invention claimed in paragraph iii. than the snow deflector, an element described on its own in paragraph ii. of the claim. (based on a translation)
41004 Application for leave filed 2023-11-20 Intellectual Property Institute of Canada v. Attorney General of Canada A-188-22 2023 FCA 168: The Commissioner refused the applications on the ground that the claims therein were directed to non patentable subject matter and therefore non-compliant with section 2 of the Patent Act. … As will be explained, the Federal Court erred for various reasons in including the test set out at paragraph 3 of its judgment. … It is difficult to understand why the Commissioner should look at the exclusions set out in subsection 27(8) before even examining whether the subject matter falls under the definition of an “invention” at section 2 of the Act. It may be practical for the Commissioner to do so in certain circumstances, but there is no basis for including this order in a legal test. … Thus, while Amazon does not settle the issue of whether, once the claims have been purposively construed, the Commissioner may consider the concepts of novelty or ingenuity in assessing patentable subject matter under section 2, on my reading of the reasons as a whole, it certainly does not preclude such an exercise. … To summarize, I find that apart from paragraph 3a, the test is not supported by the Canadian case law and deals with issues that have yet to be considered. It is also contrary to this Court’s decision in Amazon, which is a binding authority on the Federal Court. These errors justify our Court’s intervention. Moreover, there was no need to include paragraph 3a in the judgment, as there was no longer any dispute between the parties when they came before the Court that it was the law.
41026 Application for leave filed 2023-12-06 Voltage Holdings, LLC v. DOE #1 et al. (See Schedule 1 for list of Defendants) A-129-22 2023 FCA 194: The appellant sought default judgment against the respondents for two types of copyright infringement: direct infringement and authorizing infringement. In respect of the first, the appellant asserted that the respondents directly infringed its copyright by making a protected work available for download online (by posting or uploading the work); in respect of the latter, the appellant asserted that the respondents authorized an unknown person to directly infringe the appellant’s copyright. The Federal Court (2022 FC 827, per Furlanetto J.) dismissed the motion … However, given my prior conclusion that the appellant had failed to provide the Federal Court with sufficient evidence necessary to establish a link between the respondents and the infringing activity, no adverse inference could properly have been drawn in the circumstances, regardless of the procedural steps undertaken by the appellant. … To establish an infringing activity, there must be evidence that what the activity does to the work engages one of the three interests in subsection 3(1) of the Act. Posting a work online and inviting others to view it engages the author’s authorization right; however, sharing internet access after receiving notices of alleged infringement does nothing to the work in question, and does not therefore engage any copyright interest granted to the author exclusively. Because the latter scenario arises here, the activity asserted by the appellant as “authorization” cannot justify protection under the Act.
41087 Application for leave filed 2024-01-08 Apotex Inc. v. Janssen Inc. and Actelion Pharmaceuticals Ltd. A-131-22 2023 FCA 220: This appeal concerns an allegation by the respondents, collectively, Janssen, that the marketing and sale by the appellant, Apotex, of a pharmaceutical product called Apo-Macitentan would induce infringement of the respondents’ Patent by inducing physicians to prescribe the drug to patients to be taken in combination with a PDE5 inhibitor to treat a rare disease called pulmonary arterial hypertension. In an action pursuant to the PMNOC Regulations, the Federal Court (2022 FC 996) agreed with the respondents’ allegation and enjoined Apotex from various activities involving Apo-Macitentan until the expiry of the Patent. … For the reasons set out below, I would dismiss the present appeal. The issue of inducing infringement is central in this case because the Patent is concerned with the treatment of vasoconstrictive diseases (such as PAH) by a combination of macitentan and a PDE5 inhibitor, whereas Apotex would sell macitentan alone. Apotex would not take part in the ultimate act of direct infringement by use of the patented combination. … Though Apotex acknowledges that Apo-Macitentan would be prescribed for the patented combination treatment, it argues that such use would not be because of its influence. Though Janssen’s Opsumit product is intended to be used in combination treatment, and its associated PM so indicates, Apotex argues that its own PM omits references to combination treatment.
41124 Application for leave filed 2024-02-16 Preventous Collaborative Health, et al. v. Canada (Minister of Health) A-136-23 2023 FCA 249: In this court decision, the appellant, Preventous Collaborative Health, filed an application for judicial review regarding the decision by Health Canada to disclose a redacted version of an audit report. Preventous argued that the audit report should not be disclosed because it is not under the control of Health Canada as defined in the Access to Information Act. The Federal Court dismissed Preventous’ motion, stating that they did not demonstrate the relevance of the requested documents to their argument and that the request was overbroad. On appeal, the Court found no error of law or fact that would warrant interference with the Federal Court’s decision and dismissed the appeal with costs.

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Canadian Intellectual Property