Patent Litigation

November 14, 2019
Photo of the interior of an airplane cabin, showing a row of seats.

Airbus Gets Another Shot at Patent for “Breathable Fire-Preventative” Air

Fed. Cir. 2019-1803 – CAFC sides with Airbus, finding that prior art references may be analogous even if they are outside the "field of endeavour."
November 7, 2019
Pair of black and white Nike running shoes

Just Sue It: Nike Takes Skechers to Court For Copying Design Patents

Nike, Inc. v. Skechers U.S.A., Inc. – Nike claims that Skechers employs a “copying strategy” to sell “Skecherized versions” of Nike sneakers.
October 28, 2019
Flax seeds (or linseeds)

Foreign Prosecution History is Now Admissible in “Extraordinary Circumstances”

2019 FC 1233 – In a dispute over flax seeds, Canada's Federal Court says foreign prosecution history may be admissible under the new s. 53.1 of the Patent Act.
October 11, 2019
Close up photo of an automotive hub cap and tire of a car.

Automotive Patent Overturned As “Monstrous” §101 Grows Another Head

CAFC 2018-1763 – In fiercely dissented decision, a top US court has invalidated an automotive patent, further extending the reach of the controversial §101.
September 20, 2019
Macro (close-up) photo of a hazel coloured human eye, eyelashes, and eyelid.

Allergan’s Glaucoma Patents Saved by “Wherein” Clauses

CAFC 2018-2207 – The US Court of Appeals for the Federal Circuit ruled that “wherein” clauses in patent claims can be limiting if they are material to patentability.
August 23, 2019
A busnisess's empty board room with desk chairs and a table.

What Can Businesses Expect From the US Patent Reforms?

A draft bill released May 22nd proposes significant reforms to section 101 of the US Patent Act. Businesses should be aware of the commercial impact.
May 28, 2019
A judge's gavel in front of the UK national flag

PCK IP Lawyers Instrumental in Client’s Defense of Patent Ownership

PCK IP Lawyers LLP represented Netsweeper in patent ownership dispute against Prosyscor in which Netsweeper was successful.
May 7, 2019
Abstract three-dimensional design resembling building blocks

Federal Circuit Reins in Impossible Standards for Antedating Prior Art

Fed. Cir., 2016-2222 - CAFC affirms that a patent may be successfully defended if the patent holder can prove that the invention was conceived prior to any similar prior art.
September 26, 2018

Federal Court Dismisses Motion for Early Dismissal of Action Brought Under the New PM(NOC) Regulations

2018 FC 694 – Federal Court confirms that motion for early dismissal will only be granted in the clearest of cases.
August 28, 2018

Law Firm Removed on Patent Infringement Action Due to Conflict of Interest

2017 FC 874 - Aitken Klee disqualified from representing Betser-Zelevitch because one of its partners had acted for Nexen in the same action, while at another law firm.
May 8, 2018

ONSC Educates an Inventor on the Difference Between Obtaining a Patent and Maintaining a Trade Secret

2017 ONSC 7276 - The ONSC found that Rowland's statement of claim did not disclose a reasonable cause of action with regard to the allegation that his "trade secret" was stolen.
April 3, 2018

Non-Infringing Alternative Defence Denied in Omeprazole Infringement Profit Case

2017 FC 726 - The FC held that Apotex did not satisfy the factual burden required to establish a hypothetically viable non-infringing substitute during the period of infringement, which could reduce the infringement profits owed to AstraZeneca.
December 19, 2017

Federal Court Upholds Pfizer’s Polymorph Patent for the Depression Drug PRISTIQ as Inventive and Useful

2017 FC 777 - The FC rejected Teva’s allegations that Pfizer's Canadian patent was obvious and lacked utility. The FC found that the POSITA would not have been able to predict the novel crystalline form taught by the patent, and that the subject-matter of the invention claimed in the patent was useful.
December 5, 2017

Federal Court Declines Jurisdiction to Approve Third-Party Funding Agreements in the Private Litigation Context

2017 FC 826 - The FC declined to approve, or disapprove, Seedlings' litigation funding agreement with Bentham, where Bentham would fund Seedlings' patent litigation against Pfizer. The FC found that it lacked jurisdiction, as contractual matters are generally provincial in nature, and that only agreements related to class action proceedings would require the approval of the FC.
September 19, 2017

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.
June 30, 2017

Canada’s Supreme Court Abolishes Controversial “Promise Doctrine”

2017 SCC 36 - The Supreme Court of Canada struck down the “promise doctrine” of Canadian patent law in favour of merely requiring a single use related to the nature of the subject-matter of the invention having a scintilla of utility.
May 30, 2017

Federal Court of Appeal reverses Federal Court’s finding of a settlement agreement between Apotex and Allergan

2016 FCA 155 - The FCA overturned a FC decision in which it was held that the parties had settled the litigation, and had issued an order enforcing the terms of the settlement. The FCA found that a settlement had not in fact been reached, set aside the FC’s order and granted Apotex its appeal and costs.
July 3, 2014

US Supreme Court Tightens the Standard for Definiteness of Patent Claims

Nautilus Inc v Biosig Instruments Inc, No 13-369, 572 US ____ (2014) - On the matter of interpreting the meaning of electrodes in a "spaced relationship with each other", the US Supreme Court held that a patent is invalid for indefiniteness if its claims, read in light of the specification and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention and remanded the case to the Federal Circuit.
April 15, 2014

Federal Court Dismisses Bell’s Motion to Disqualify the Law Firm of Bereskin and Parr in Patent Infringement Action

Mediatube Corp. and Northvu Inc v Bell Canada et al, 2014 FC 237 - The Court dismissed a motion to remove Bereskin & Parr as solicitors of record for Mediatube for a conflict of interest, finding that “[w]hile there may be some circumstances where related companies could be considered as one entity and one client, the circumstances in the present case do not lead to that conclusion.”
February 18, 2014

Federal Court Holds Valeant’s Prohibition Application Is Not Abuse of Process

Valeant Canada LP v. Cobalt Pharmaceuticals – 2013 FC 1254 Cobalt moved, pursuant to s. 6(5)(b) of the PM(NOC) Regulations, to dismiss as an abuse of […]