Claim Construction

November 7, 2017
tadalafil

Apotex Fails to Change FCA’s Opinion in Tadalafil Case

2016 FCA 267 - Apotex unsuccessfully sought to show that the FCA had erred in another decision by not following the SCC's decision in Whirlpool. Apotex also unsuccessfully argued that the FC had erred by finding the tadalafil patent to have sufficient disclosure.
September 19, 2017
price

Federal Court finds Expert Blinding to be One Factor in Assessing Weight Given to Expert Evidence

2016 FC 857 - The FC granted Gilead’s application for an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex in respect of its Notice of Allegation until the expiry of Gilead’s Canadian patent.
August 8, 2017

IPTV case shows that Interpretation of IT Patents may be 0’s or 1’s

2017 FC 6 - MediaTube brought allegations of infringement against Bell over one of its IT patents, asserting that Bell had infringed the patent with Bell’s IPTV services. The FC deemed the patent to be valid, but not infringed. Costs were decided in Bell’s favour and elevated to reflect the punitive damages claimed by MediaTube and the weak argument they had put forth.
August 1, 2017

Federal Court of Canada finds that complexity of issues or conflicting evidence are not bars to a summary trial

2016 FC 1117 - Cascade brought a claim that Kinshofer had infringed its Canadian patent related to a safety locking device for quick couplers. After carrying out a claim construction, the FC did not find that the patent had been infringed.
June 13, 2017

FC Denies Prohibition Order Request; Finds Expert Blinding Persuasive But Not Primary Interest

2016 FC 382 - The FC concluded that Apotex’s allegations of non-infringement in respect of Shire's Canadian Patent were justified and accordingly denied Shire’s requested prohibition order.
May 2, 2017

FCA Finds Provincial Limitation Periods May Apply to Patents Subject to the Old Patent Act

2017 FCA 9 - The FCA affirmed the FC decision that AstraZeneca’s patent was valid and infringed, accepted Apotex’s appeal with respects to limitation periods, and rejected AstraZeneca’s cross-appeal regarding punitive damages.
August 8, 2016

FC Calls on Opening Canadian Patent Prosecution File Histories for Claim Construction

2016 FC 883 - The Federal Court followed the longstanding rule against the use of patent prosecution file history in interpreting the claims of a patent, but made a strong case for why the patent prosecution file history is worth considering, as is common practice in the U.S.
March 30, 2016

FCA Nods To SCOTUS, Recommends The Use Of The Clear Error Standard Of Review In Claim Construction Where Expert Evidence Plays A Significant Role

2015 FCA 116 - The FCA advised that where expert evidence plays a significant role, claim construction might involve subsidiary factual disputes reviewed on a palpable and overriding error standard, which is equivalent to the United States clear error standard.
February 10, 2016

FCA Upholds Claim-by-Claim Construction and Test for Functionality in Industrial Designs

2015 FCA 115 - The FCA restated the law on functionality of industrial designs and the requirement that patent claims be construed on a claim-by-claim basis.
October 6, 2015

FCA Nudges SCC to Consider that Claim Construction should be Reviewed on Reasonableness Standard

Abb Technology AG, ABB Inc v Hyundai Heavy Industries Co, Ltd, 2015 FCA 181 - The FCA suggested that although claim construction is reviewed on a correctness standard, claim construction is so heavily reliant on expert witnesses that perhaps it should be reviewed on a palpable and overriding error standard.