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 21, 2021]

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
39823 Application for leave filed 2021-10-04 ViiV Healthcare Company, et al. v. Gilead Sciences Canada, inc. (Dolutegravir*) A-115-20 2021 FCA 122: The appellants (collectively “ViiV”) appeal from three interlocutory orders of the Federal Court (all per Manson J.). ViiV also appeals a summary judgment dismissing its patent infringement action against the respondent, Gilead (per Manson J.): 2020 FC 486. … When a motion for summary judgment or summary trial is brought, how should the Court proceed? What exactly is the methodology the Court should follow? These days, the answer is rather unclear. … Where a motion for summary judgment or summary trial or its timing seems problematic in the sense described above, a motion to quash or adjourn may be brought subject to the qualifications set out above. Absent such a motion, the Court—acting on its own initiative in accordance with the principles set out above—can invite submissions and then decide the issue whether a motion for summary judgment or summary trial should be entertained at all or should be adjourned. … At the end of the day, the Court must be satisfied that the prerequisites in the Rules for summary judgment or summary trial, understood in light of Rule 3, are met and that it is able to grant summary judgment, fairly and justly, on the evidence adduced and the law. … Therefore, I would dismiss the four appeals with costs.

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Canadian Intellectual Property