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 July 12, 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

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
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.
41194 Application for leave filed 2024-04-04 GreenBlue Urban North America Inc. v. DeepRoot Green Infrastructure, LLC, et al. A-181-21 2024 FCA 19: The appellant has brought a motion seeking both an extension of time within which to bring its motion and an order varying this Court’s judgment in 2023 FCA 184, to change the disposition to allow the appeal as opposed to dismissing it. For the reasons that follow, this motion will be dismissed, with costs. … First, the appellant’s motion was brought well outside the applicable ten-day time limit provided in Rule 397(1) … The appellant also does not meet the second criterion for the extension of time because its explanation for the delay in bringing this motion is not reasonable. … Likewise, the third criterion for the extension is absent because there is no merit to the appellant’s claims. The Court did deal with the appellant’s overbreadth arguments that the claims were broader than the invention made, as the appellant eventually conceded in paragraphs 4 to 6 of its reply submissions on this motion. [DLA Piper represented the successful respondent]
41209 Application for leave filed 2024-04-10 Pharmascience Inc. v. Janssen Inc., et al. A-205-22 2024 FCA 23: This is an appeal of a decision 2022 FC 1218 in the context of an action brought pursuant to subsection 6(1) of the PM(NOC) Regulations. … The only ground that remains relevant for the purposes of this appeal is that the claims of the 335 Patent are invalid because they comprise unpatentable subject matter, namely methods of medical treatment. The Federal Court rejected this allegation and found the claims of the 335 Patent valid. … To summarize, whether or not a patent claim to a dosing regimen relates to a method of medical treatment cannot be based exclusively on whether its dosing and schedule is fixed or not. The proper inquiry remains whether use of the invention (i.e., how to use it, not whether to use it) requires the exercise of skill and judgment, and the burden remains on the party challenging the patent. … It follows from the foregoing that I would dismiss the present appeal.
41323 Application for leave filed 2024-06-11 Steelhead LNG (ASLNG) Ltd., et al. v. ARC Resources Ltd., et al. A-210-22 2024 FCA 67: This appeal turns on what constitutes “use” of a patented invention for the purposes of proving infringement of a patent under section 42 of the Patent Act. The appellants claim that the respondents “used” their invention and infringed their patent when, in order to enter into commercially valuable transactions, they disclosed to prospective business partners and stakeholders, as a proof of concept, drawings, specifications and cost estimates of a design which, if ever built, would comprise the essential elements of the patent. The novel and expansive reading of “use” proposed by the appellants to support their claim of infringement finds no basis in the language of the Act or the leading precedents that have interpreted it. Its adoption by this Court would undermine the accepted principles underlying Canada’s regime of patent protection, including the patent bargain, and inject uncertainty into a well-settled area of law. For the reasons that follow, I would reject the appellants’ proposed interpretation of section 42 and dismiss the appeal. This is an appeal from … 2022 FC 998. … The question is whether a commercial benefit is realized in the context of a defendant’s commercial activities involving the patented object.
41324 Application for leave filed 2024-06-12 Leonard B. French v. Royal Canadian Legion (Dominion Command) A-158-23 2024 FCA 63: The court decision revolves around the interpretation of subsection 64(2) of the Copyright Act concerning copyright and moral rights infringement issues related to a design applied to a useful object. The appellant created a plush toy, the Poppy Puppy, and sold a significant quantity to the respondent. Over a decade later, the appellant alleged copyright and moral rights infringement based on a statement by the respondent in their catalogue. The court reviewed the legislative intent behind subsection 64(2) to restrict copyright and moral rights for designs reproduced in industrial quantities. While the appellant argued moral rights infringement, the court found that the respondent’s actions fell within the protection of subsection 64(2). With statutory interpretation principles in mind, the court contemplated the nuances of the legislation and concluded that the appellant’s claims of infringement were not substantiated, leading to the dismissal of the appeal.

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Canadian Intellectual Property