snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Monthly Archives: February 2018

British Columbia Securities Commission Releases Fintech Request for Comment

Posted in Fintech, Virtual Currency

On February 14, 2018, the British Columbia Securities Commission (BCSC) published a notice and request for comment (the “Notice”) on the securities law framework for Fintech regulation in the province. The Notice summarizes the results of consultations the BCSC has undertaken in the Fintech space and poses related questions to stakeholders. The Notice provides useful information—and an important opportunity to provide input—for businesses with an interest in how regulatory rules for Fintech may change in the future.

The BCSC has actively monitored Fintech developments over the past 18 months. In January 2017, the BCSC established a dedicated support group, the … Continue Reading

Canadian Patent Damages – Mitigation and Person Claiming Under the Patentee

Posted in Intellectual Property, Litigation, Patents

Not long after its decision in Apotex Inc. v. Bayer Inc (2018 FCA 32 – see our blog), the Federal Court of Appeal released another important decision on the subject of remedies for patent infringement (full decision here: Teva Canada Limited v. Janssen Inc., 2018 FCA 33).

The Court of Appeal confirmed that whether a plaintiff has reasonably mitigated its loss in a patent case is a question of fact. The burden lies with the defendant to establish the plaintiff failed to take reasonable steps that were available to mitigate. Further, the Court of Appeal reiterated … Continue Reading

Canadian Patent Litigation: Five Things to Watch in 2018

Posted in Intellectual Property, Litigation, Patents

2017 was a significant year for Canadian patent law — one marked by the Supreme Court abolishing the so-called ‘Promise Doctrine’ of utility, as well as several other significant changes. Here’s a look at five things to watch for in patent litigation in the coming year.

1. Promise Doctrine Abolished

On June 30, 2017, the Supreme Court of Canada, released a landmark patent decision AstraZeneca Canada Inc. v. Apotex Inc., 2017 SCC 36, abolishing Canada’s so-called ‘Promise Doctrine’ (our commentary here). Under the Promise Doctrine, patents could be invalidated if various heightened utilities construed from the patent were … Continue Reading

Canada’s Federal Court of Appeal Says Infringers Cannot Dictate the Remedy

Posted in Intellectual Property, Litigation, Patents

When a patent is infringed in Canada, a successful plaintiff can elect damages, or an accounting of the profits the defendant made by infringing. Unless there is an equitable reason to refuse an accounting of profits, the choice belongs to the plaintiff.[1]

In Apotex Inc. v. Bayer Inc., 2018 FCA 32, the Federal Court of Appeal ruled in no uncertain terms that the infringer does not get to dictate the remedy. The infringer, Apotex, raised a novel argument that it could impose an accounting of profits on Bayer. In the Court below, Justice Fothergill rejected Apotex’s argument, holding … Continue Reading