Obviousness

The Patent Act stipulates that the subject matter defined by a claim in an application for a patent in Canada must be subject matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains. The word “invention” implies ingenuity, without which an advance is obvious; and patents are not granted for the obvious.

October 29, 2014

Federal Court Rejects Subway Video Advertising Patent for Obviousness

Blair v Canada (Attorney General), 2014 FC 861 - In coming to its finding of obviousness, the Commissioner determined that while the combination of the elements in the invention as a whole was novel, it did not involve ingenuity since there was a “trend in the art” of installing video systems in a wide variety of transportation systems.
October 27, 2014

Expert witnesses proven to be pivotal in Dow Chemical patent infringement suit

Dow Chemical Co v NOVA Chemicals Corp, 2014 FC 844 - The Federal Court found that NOVA Chemicals infringed Canadian Patent No. 2,160,705, owned by The Dow Chemical Company, by NOVA’s use of its “SURPASS” polyethylene product. Allegations of invalidity for lack of utility, claims broader than any invention made or disclosed, anticipation, obviousness, double patenting, and insufficiency of the specification were unsuccessful.
October 17, 2014

Federal Court Invalidates Patent on Infomercial Garden Hose

E Mishan & Sons, Inc v Supertek Canada Inc, 2014 FC 326 - The Federal Court dismissed an infringement claim made by the plaintiffs regarding the sale of self-expanding garden hoses by the defendants because the infringed claims were declared invalid for obviousness.
October 16, 2014

Federal Court Upholds Re-examination Board’s Decision Invalidating Waste Heat Recycling Claims

Newco Tank Corp v Canada (Attorney General), 2014 FC 287 - The person of ordinary skill in the art was determined to have background knowledge that there was a heat inefficiency problem that the invention seeks to address. The only evidence for this proposition is that it was discussed under the “SUMMARY OF THE INVENTION” heading of the patent.
July 31, 2014

Federal Court Prohibited Issuance of a NOC for Generic Version of Lumigan

Allergan Inc v Apotex Inc, 2014 FC 567 - In terms of claim construction, this case shows the tension between construing claims based solely on the wording of the claims versus peering beyond the wording of the claims to distill an underlying invention.
December 23, 2013

PAB Rejects Application for Obviousness

Re. Patent Application 2,223,198 CD 1344   Background   Patent application 2,223,198 is for a nutritional composition that has successfully caused Chrohn’s disease to go into […]
October 29, 2013

Subject Matter, Obviousness, Double Patenting and Sound Prediction all Issues in Recent FC Case

Bayer Inc. v Cobalt Pharmaceuticals Company [2013 FC 1061] Background This proceeding is an application under the NOC regulations by Bayer seeking a prohibition order to […]
October 18, 2013

FCA Upholds Trial Judge Finding on Obviousness

Teva Canada Limited v Novartis Pharmaceuticals Canada Inc, 2013 FCA 244. Background Teva appealed a judgment of Justice Hughes(2012 FC 283) where a prohibition order was […]
October 2, 2013

PAB Refuses Patent for Distributed Content Electronic Commerce for Obviousness

Re Patent Application 2,222,229 [CD 1341]   Background The PAB dealt with a Final Action on patent application number 2,222,229 which was entitled “SYSTEM AND METHOD FOR […]
October 1, 2013

PAB Declares Patent Invalid on Basis of Obviousness, Lack of Inventiveness, and for Having an Indefinite Scope

Re: Patent Application No. 2,285,834 [CD 1337] Background The Patent application 2,285,834 was filed on October 13, 1999 based on a US priority application no. 09/182,020 filed on […]