The Government of Canada has announced that the amended NOC regulations will come into force on September 21, 2017. These amendments will implement sweeping changes to pharmaceutical patent litigation in Canada pursuant to obligations imposed under CETA. The changes will apply to proceedings commenced in respect of NOAs served on or after September 21, 2017.
On January 4, 2017, the Honourable Justice Locke of the Federal Court of Canada released his decision in Mediatube Corp. et al. v. Bell Canada, 2017 FC 6. This was a patent infringement action in respect of Canadian Patent No. 2,339,477 (the “‘477 Patent”) by the plaintiffs, NorthVu Inc. (patent owner) and MediaTube Corp. (licensee) against Bell Canada (including former Bell Aliant Regional Communications, Limited Partnership, together “Bell”). The plaintiffs alleged that Bell infringed the ‘477 Patent through the delivery of its digital Internet Protocol Television (“IPTV”) services called Fibe TV and FibreOp … Continue Reading
On March 31, 2016, the Competition Bureau (Bureau) released revised Intellectual Property Enforcement Guidelines (IPEGs). These IPEGs reflect incremental changes to the draft version released for consultation last year. Most notably the new IPEGs provide further guidance on (i) pharmaceutical patent litigation settlements, (ii) product switching (also known as “product hopping”), (iii) collaborative standard setting and standard essential patents, and (iv) patent assertion entities.… Continue Reading
In a Judgment released July 23, 2015, the Federal Court of Appeal upheld the Federal Court’s award of more than C$180 million in damages and interest for Apotex’s infringement of Merck’s Canadian lovastatin patent. In this decision, the Federal Court of Appeal reversed the Trial Judge and held that the availability of a non-infringing alternative (“NIA”) is relevant under Canadian law but held that Apotex could not have and would not have deployed it.… Continue Reading
On September 26, 2014, Prime Minister Harper announced that Canada and the European Union have successfully concluded negotiations on a new trade agreement, the Comprehensive Economic and Trade Agreement (CETA) that was five years in the making, and publicly released the consolidated text of the agreement.
CETA is deeper in substance and broader in scope than any other such agreement in Canadian history, significantly affecting all economic areas, including the pharmaceutical sector.
The CETA chapter on intellectual property is of particular interest to the pharmaceutical industry, because it will introduce into Canada for the first time:
- additional (sui generis
On June 4, 2014 Justice Roger Hughes of the Federal Court released his public reasons for dismissing Bayer’s prohibition application against Apotex in respect of its generic YAZ tablets on the basis that Apotex’s non-infringement allegation was justified. His confidential judgment was issued on May 7, 2014 and Apotex received its NOC the very next day. The term of Bayer’s patent was not set to expire until August 31, 2020. For the full written decision see: Bayer Inc. et al. v. Apotex Inc. et al. 2014 FC 436.
Although not determinative, this decision addresses the somewhat contentious issue of … Continue Reading
This is part of a series of posts reviewing common Canadian Patent Office objections to patent applications and claimed inventions and providing some insight into how these objections may be addressed.
In a typical objection, the patent examiner asserts that the claimed composition of matter, while novel and non-obvious, cannot be patented because the application’s description fails to prove the utility of all claimed embodiments. The examiner usually will rely on:
- the definition of “invention” in section 2 of the Patent Act as the statutory basis for the objection.
- recent case law, mainly from abbreviated proceedings under the
If your organization is currently thinking about establishing or acquiring a technology business in Canada, the 2012 edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information, up-to-date legislative provisions and insightful commentary on different areas of law. After downloading the guide, we encourage you to consult one of our lawyers for a more comprehensive analysis … Continue Reading
The Canadian Patent Act and Patent Rules provide the entire statutory framework for patent law in Canada. The Act and Rules contain all of the requirements to be satisfied before the Commissioner of Patents is obliged to grant a patent. These requirements relate to two main aspects of patents: (a) the nature of the invention for which patent protection is sought; and (b) the patent application that describes and claims the invention.
The Act and Rules form a complete code for patent grant. Subsection 27(1) of the Patent Act requires the Commissioner of Patents to grant a patent if the … Continue Reading
To determine whether an invention claimed in a patent is obvious, what parts of a patent can the court consider to ascertain the inventive concept of the claims? According to the Federal Court decision in Allergan Inc. v. Canada (Minister of Health), the disclosure of a patent – not just the claims themselves – can be used as part of this inquiry.
In Allergan, Sandoz argued that the patent claims define the invention and, therefore, the inventive concept of the patent “must be discerned solely from the language in the claims of the patent.” However, the Court held … Continue Reading