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 22, 2019]

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
37863 Hearing scheduled for 2019-03-29 Keatley Surveying LTD. v. Teranet Inc. 2017 ONCA 748: In 2007, the appellant, Keatley Surveying Ltd. (“Keatley”), brought a proposed class action on behalf of all land surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices. Keatley claimed that the respondent, Teranet Inc. (“Teranet”), who operated Ontario’s electronic land registry system (“ELRS”) for the Province, infringed surveyors’ copyright by digitizing, storing, and copying the plans of survey created by the surveyors and registered or deposited in the ELRS. … For the reasons that follow, I would dismiss Keatley’s appeal. I agree with the motion judge that copyright in the registered or deposited plans of survey belong to the Province. … In summary, I would hold that the extensive property-related rights bestowed on the Crown by the land registration scheme in Ontario compel the conclusion that the publishing of those plans, by making copies of the plans available to the public, is done under the “direction or control of Her Majesty.” Section 12 of the Copyright Act declares that the copyright in the registered or deposited plans of survey belongs to the Crown.

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
38416 Application for leave filed 2018-11-27 Arctic Cat, Inc., et al. v. Bombardier Recreational Products Inc. A-109-17 2018 FCA 172: Bombardier Recreational Products Inc. (BRP) appeals the decision of Roy J. of the Federal Court (2017 FC 207) dismissing its action for infringement against Arctic Cat, Inc. and Arctic Cat Sales, Inc. (collectively AC) with respect to Canadian Patents 2,293,106 (the 106 Patent), 2,485,813 (the 813 Patent), 2,411,964 (the 964 Patent) (collectively referred to as the Rider Forward Position Patents or RFP Patents). In this decision, the Federal Court concluded that BRP had established that various models of snowmobiles sold by AC infringed some claims of each of the RFP Patents, but it found that the claims were invalid. It also issued a declaration of invalidity of the asserted claims (AC’s counterclaim). The sole basis relied upon by the Federal Court in that respect is that the disclosures of the RFP Patents did not meet the requirement of subsection 27(3) of the Patent Act (insufficiency). BRP also challenges the Federal Court’s dismissal of its action with respect to Canadian Patent 2,350,264 (the 264 Patent). The Federal Court concluded that, on its interpretation of the claims at issue, the snowmobiles sold by AC did not infringe the 264 Patent because they did not include an “engine cradle” within the meaning of the claims. For the following reasons, I would allow the appeal in part.
38471 Application for leave filed 2019-01-14 Apotex Inc., et al. v. Schering Corporation, et al. 2018 ONCA 890: Specifically, the motion judge refused to permit the appellants to plead that a June 29, 2009 decision of the Federal Court of Canada invalidating a patent was decided based on wrong legal principles. The following reasons explain why I have determined that the motion judge erred in his conclusion. … The underlying action involves a claim by the respondent for damages pursuant to three statutes: An Act concerning Ontario Statute of Monopolies, UK Statute of Monopolies and the Trade-marks Act. … The Invalidity Decision (2009 FC 676) entailed two findings – a finding of inutility based on the “promise doctrine”, and an alternative finding of “obviousness”. … Given the centrality of the Invalidity Decision to this action, in considering whether the elements of the claim will be made out by the respondent, it seems fundamentally unfair to preclude the appellants from arguing that this central element is suspect.
38485 Application for leave filed 2019-01-31 Apotex Inc. v. Eli Lilly and Company, et al. (Cefaclor*) A-64-15 2018 FCA 217: This is the latest in a long saga of proceedings opposing generic drug producer Apotex Inc. and global pharmaceutical giant Eli Lilly and Company and its Canadian subsidiary, Eli Lilly Canada Inc. [together, Lilly]. Here, Apotex appeals the judgment of Zinn J. of the Federal Court (2014 FC 1254) [Damages Decision]. In that decision, the Federal Court was tasked with assessing the damages suffered by Lilly as a result of the infringement of eight Canadian patents for the processes relating to the making of a key intermediate compound (referred to as “7-ACCA”) required to make cefaclor, a cephalosporin antibiotic used to treat certain bacterial infections.
38506 Application for leave filed 2019-02-14 P.S. Knight Co. Ltd., et al. v. Canadian Standards Association A-121-16 2018 FCA 222: In this appeal, the appellants seek to set aside the judgment of the Federal Court in Canadian Standards Association v. P.S. Knight Co. Ltd., 2016 FC 294 (per Manson J.) as well as the supplemental judgment in Canadian Standards Association v. P.S. Knight Co. Ltd., 2016 FC 387 (also per Manson J.). … The appellants first submit that the Federal Court erred in concluding that the CSA Electrical Code can be the subject of copyright. Because it is incorporated into various statutes and regulations, the appellants say that the CSA Electrical Code is law and, relying principally upon American case law, say that there cannot be any copyright in the law. … The appellants next argue, … the Federal Court erred in holding that the CSA could rely on paragraph 34.1(2)(a) of the Copyright Act because the presumption in that paragraph cannot apply to a corporation. … The appellants next argue, in the yet further alternative, that the Federal Court erred in its treatment of the defence of fair dealing and in concluding that Peter Knight was not granted a perpetual licence that operated to the benefit of the Knight Co., which they say allow it to distribute its identical copy of the 2015 version of the CSA Electrical Code. … I do not believe that any of the various arguments raised by the appellants warrants intervention by this Court. … Dissent: I have read the reasons of my colleague Justice Gleason, however, I am unable to agree with respect to the application of Crown prerogative in this case. The issue in this case is whether a person, other than the Crown, who authors a document or who otherwise acquires the copyright in a document, retains the right to prevent another person from publishing that document after it has been incorporated into the laws of Canada.
38550 Application for leave filed 2019-03-21 Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. A-65-18 2019 FCA 10: Sadhu Singh Hamdard Trust appeals from a decision of the Federal Court dated January 17, 2018 (2018 FC 42 per Southcott J.) dismissing its appeal of a decision by the Trade-marks Opposition Board (the Board) (2015 TMOB 214). In that decision, the Board allowed the respondent’s opposition of the appellant’s proposed word mark “AJIT” in association with printed publications and newspapers on the basis that it lacked distinctiveness.

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Canadian Intellectual Property