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 2, 2023]

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
40354 Application for leave filed 2022-09-15 Licensing IP International S.À.R.L., et al. v. Sweet Productions Inc., et al. A-100-21 2022 FCA 111: This is an appeal from the judgment of the Federal Court (per Justice Zinn) dated March 10, 2021, allowing an appeal of Prothonotary’s Steele’s Order dated October 16, 2020, and dismissing the underlying action brought by the appellants for copyright infringement in respect of cinematographic works appearing on the respondents’ “Pornhub websites”. The main issue on this appeal (and before the Federal Court) relates to the proper remedy when undue delay has been found pursuant to Rule 167 of the Federal Courts Rules. More specifically, should the Court start with the presumption of dismissal if undue delay is found, as determined by the Federal Court, or is the Court’s discretion unfettered and dismissal only to be used as a remedy of last resort? … Accordingly, I would allow the appeal in part, set aside the Federal Court’s judgment in relation to Rule 167, and reinstate the Prothonotary’s Order that the underlying action proceed as a specially managed proceeding.
40363 Application for leave filed 2022-09-20 Swist et al v. MEG Energy Corporation A-35-21 2022 FCA 118: The 746 Patent, titled “Pressure Assisted Oil Recovery”, describes a method of extracting heavy oil from underground reservoirs. The appellants, of the 746 patent, brought an action in the Federal Court against the respondent (MEG), an Alberta oil producer. They alleged that the methods MEG uses to extract oil infringe claims 1 to 6 and 8 of the 746 patent. MEG denied infringement, and counterclaimed for a declaration that claims 1 to 8 are invalid for anticipation, obviousness, inutility, and overbreadth. … In the trial of the liability phase, which included eight days of expert and fact evidence, the Federal Court (2021 FC 10, Fothergill J.) found no infringement by MEG. It also granted MEG’s counterclaim, finding claims 1 to 8 of the 746 patent invalid for anticipation and inutility. … n this appeal, the appellants submit that the Federal Court committed reversible errors in its construction of the 746 patent, in failing to find infringement, and in finding invalidity on the basis of anticipation and inutility. … I conclude that the Federal Court committed no reversible errors in its construction of the 746 patent or in its findings on infringement and anticipation. On this basis, I would dismiss the appeal.
40400 Application for leave filed 2022-10-21 Pharmascience Inc. v. Bristol-Myers Squibb Canada Co, Bristol-Myers Squibb Holdings Ireland Unlimited Company and Pfizer Inc. (Apixaban*) A-32-21 2022 FCA 142: This decision results from four consolidated appeals from a decision of the Federal Court (2021 FC 1, per Zinn J.) concerning four actions under the Patented Medicines (Notice of Compliance) Regulations … The Federal Court rejected all of the appellants’ validity attacks, and found both patents valid. … The patent validity issues remaining in dispute are as follows: A) For the 202 Patent: Status as a Selection Patent; Anticipation, Obviousness, and Double Patenting; and Insufficiency, B) For the 171 Patent: Obviousness; Ambiguity; and Overbreadth. … In short, I conclude that the appeals remaining in dispute should be dismissed.
40420 Application for leave filed 2022-10-31 Apotex Inc., et al. v. Eli Lilly Canada Inc., et al. 2022 ONCA 587: The central issue on this appeal is whether the invalidation in 2011 of Eli Lilly’s 1998 pharmaceutical patent registration for Olanzapine gives rise to a claim by Apotex for damages from its generic pharmaceutical being kept out of the market … Apotex’s claims for damages under the Statute of Monopolies, the Trademarks Act, and the common law tort of civil conspiracy all arise from the finding that Eli Lilly’s patent was invalid and void ab initio. [See 2021 ONSC 1588] … Apotex is not entitled to remedies beyond s. 8 of the PM(NOC) Regulations. Apotex chose to engage the PM(NOC) Regulations because of the benefits that the regime provides to generic manufacturers. Having unsuccessfully challenged Eli Lilly’s patent registration and unsuccessfully pursued a remedy under the PM(NOC) Regulations, it is not open to Apotex to effectively seek the same relief under the auspices of other statutory and common law claims.

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Canadian Intellectual Property