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 May 18, 2022]

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
39418 Leave granted 2021-04-22 Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al. A-267-17 2020 FCA 100: [SOCAN] filed with the Copyright Board proposed tariffs for certain years for the communication to the public by telecommunication of works in its repertoire through an online music service. … After SOCAN had filed its proposed tariffs, the Copyright Act was amended. A new subsection, subsection 2.4(1.1), sometimes called the “making available provision”, was added to the Copyright Act. … In short, in the Board’s view, subsection 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within paragraph 3(1)(f) of that Act and, thus, an act that triggers a tariff entitlement. … Nowhere did the Board explicitly say that it had a desired result in mind and that it was going to interpret subsection 2.4(1.1) in a manner to get that result. But looking at the reasons as a whole, whether it intended to do so or not, that is exactly what the Board did: it skewed its analysis in favour of one particular result. … The Board’s decision and many of the submissions supporting it suffer from a misunderstanding of the relationship between Canadian domestic law and international law. … On the submissions made, this much can be said. Subsection 2.4(1.1) does not create a new exclusive right. The Board used a “deeming provision” to create a right which, simultaneously, was and was not part of the communication right. When the deeming provision is set aside, all that is left is what the Board itself described (at para. 117) as a “preparatory act”. This is consistent with Parliament’s use of the word “includes” in subsection 2.4(1.1). It would be contrary to the policy of the Act to establish a tariff on a preparatory step as this would constitute disaggregating rights for the purpose of adding an additional layer of royalties.
39439 Leave granted 2021-05-20 Nova Chemicals Corporation v. The Dow Chemical Company, et al. A-150-17 2020 FCA 141: Before the Court is an appeal and a cross-appeal from the judgment of the Federal Court in file T-2051-10 (per Fothergill J.): 2017 FC 350, supplementary reasons 2017 FC 637, reasons on costs 2017 FC 759. … Broadly speaking, the appeal and the cross-appeal in this Court concern the principles that should govern the calculation of a plaintiff’s recovery under an accounting of profits. This issue arises from an earlier judgment of the Federal Court, later affirmed on appeal: 2014 FC 844, aff’d 2016 FCA 216. … The jurisprudence has developed two rules for courts to help them implement these principles: (1) only actual profits, meaning actual revenues minus actual costs, are disgorged; (2) only profits that have resulted from the patent infringement are disgorged. … Thus, for the foregoing reasons, in the accounting of profits context, the use of the term “non-infringing baseline” is preferable to “non-infringing alternative”. Using the term “non-infringing baseline” steers courts and litigants away from impermissible “but for” reasoning. … In my view, absent some exceptional or compelling circumstance or persuasive expert evidence to the contrary in a particular case, the full cost method is the appropriate approach to deducting costs in an accounting of profits. … Dissent: For the reasons below, I have concluded that an apportionment of profits is appropriate in this case. I also conclude that the Federal Court made a reviewable error by not considering the issue of “causation”, which is at the heart of the legal test of apportionment.

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
39895 Application for leave filed 2021-12-06 Robert Salna, et al. v. Voltage Pictures, LLC, et al. A-439-19 2021 FCA 176: This is an appeal and cross-appeal from an order of the Federal Court (2019 FC 1412, per Boswell J.). … Voltage sought certification of a respondent class proceeding alleging infringement of its copyright protected work by the appellants. Known colloquially as a “reverse class action”, Voltage targeted the online copyright infringement of five of its films … The proposed class proceeding may ultimately flounder, for reasons which I will identify, but the judge erred in presuming that to be the case at so early a stage. … if the Federal Court’s reasoning prevailed, Voltage, and those similarly situated, would, in many cases, be without any remedy for violation of their copyright: a respondent class proceeding is not available and the joinder of thousands of individual actions simply not feasible. … The certification motion is returned to the Federal Court for consideration of Rule 334.16(1)(d) and Rule 334.16(1)(e) of the Federal Courts Rules in light of these reasons.
40100 Application for leave filed 2022-03-07 Pharmascience Inc., et al. v. Teva Canada Innovation, et al. (Glatiramer*) A-315-20 2022 FCA 2: Over several weeks during the fall of 2020, Federal Court Justice Catherine M. Kane heard the trial of two patent infringement actions (see 2020 FC 1158) commenced pursuant to the Patent Medicines (Notice of Compliance) Regulations. … Pharmascience argues that the Trial Judge erred with regard to the requirement for a proper disclosure by applying the disclosure requirement that is applicable to patents in general, and failing to recognize a heightened disclosure requirement applicable to inventions based on sound prediction. … Pharmascience also argues in the alternative that, if the 802 Patent does not fail for lack of utility, it must fail for obviousness. It notes that the 802 Patent does not provide any results of experiments that could form the factual basis for a sound prediction of utility, and therefore the required factual basis and line of reasoning to support of a sound prediction must come from the common general knowledge of the person skilled in the art (PSA). … For the reasons set out below, I would dismiss the present appeal. I find no reviewable error in the Trial Judge’s conclusions regarding either the utility or the inventiveness of the 802 Patent.

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Canadian Intellectual Property