On June 15, 2016, in Apotex Inc v Canada (Health), 2016 FC 673, Manson J of the Federal Court quashed the Minister of Health’s (Minister) 2015 Decision varying the establishment licenses for Apotex Inc’s (Apotex) Indian drug manufacturing facilities. The 2015 Decision arose from Health Canada’s inspection of the Indian facilities to assess whether Apotex had successfully addressed its data integrity violations following Health Canada’s 2014 Import Ban against these facili
Deeth Williams Wallhttp://www.dww.com/articles/canada’s-federal-court-quashes-health-canada’s-2015-import-ban-against-apotex’s-indian
On August 8, 2016, in Apotex Inc v Pfizer Ireland Pharmaceuticals, 2016 ONSC 4966, the Ontario Superior Court of Justice (ONSC) struck Apotex’s Section 8 claim while dismissing Pfizer’s motion to strike Apotex’s other damages claims.
Deeth Williams Wallhttp://www.dww.com/articles/ontario-court-struck-apotex’s-section-8-claim-while-maintaining-other-claims
On August 22, 2016, Investel Capital Corporation (Investel), a Vancouver-based investment company commenced an action before Canada’s Federal Court (court file number T-1406-16) against Snapchat Inc (Snapchat) for allegedly infringing its Canadian Patent No 2,887,596 (the 596 Patent) entitled “User Content Sharing System and Method with Automated External Content Integration”.
Deeth Williams Wallhttp://www.dww.com/articles/snapchat-inc-sued-canada-for-alleged-patent-infringement
On August 4, 2016, in Multilayer Stretch Cling Film Holdings v Berry Plastics Corporation, 2015-1420, the United States Court of Appeals for the Federal Circuit (the Court), Taranto J dissenting in part, construed the Markush claim language, “being selected from the group consisting of”, as being limited to only the recited elements in the claim.
Deeth Williams Wallhttp://www.dww.com/articles/us-federal-circuit-construes-“consisting-of”-markush-group-as-being-limited-to-recited
Tasty Burger, a US restaurant chain operating in Boston and Washington, D.C., has demanded that Chipotle Mexican Grill (Chipotle) change the name and logo of its new burger franchise, Tasty Made, which is set to open this fall in Lancaster, Ohio.
Deeth Williams Wallhttp://www.dww.com/articles/some-tasty-trouble-brewing-fast-food-wars
On August 12, 2016, the Antitrust Division of the United States Department of Justice and the Federal Trade Commission (collectively the Agencies) jointly proposed updates to the 1995 Antitrust Guidelines for the Licensing of Intellectual Property (the IP Guidelines), which provides the Agencies enforcement policy for the licensing of intellectual property protected by patent, copyright, trade secret, and k
Deeth Williams Wallhttp://www.dww.com/articles/us-department-of-justice-and-federal-trade-commission-propose-updates-to-ip-licensing
On August 16, 2016, the Government of Canada’s Ministry of Public Safety and Emergency Preparedness launched a public consultation on cyber security. The purpose of the consultation is to engage the public in order to assess opportunities arising from rapidly changing digital technology, and to assess Canada’s current cyber security environment.
Deeth Williams Wallhttp://www.dww.com/articles/government-of-canada-engages-public-consultation-on-cyber-security
On August 9, 2016, Amgen Canada Inc (Amgen) filed an application for leave to appeal to the Supreme Court of Canada from the Federal Court of Appeal (FCA) decision in Amgen Canada Inc v Apotex Inc, 2016 FCA 196 (SCC Case No.
Deeth Williams Wallhttp://www.dww.com/articles/amgen-sought-leave-to-appeal-filgrastim-decision-to-supreme-court-of-canada
On August 4, 2016, Health Canada issued a notice entitled “Use of United States Food and Drug Administration (FDA) Guidance Materials to support Canadian Medical Devices License Applications” (the Notice).
Deeth Williams Wallhttp://www.dww.com/articles/health-canada-issues-notice-on-use-of-fda-guidance-material-to-support-canadian-medical
In Geophysical Service Incorporated v Jebco Seismic UK Limited, 2016 ABQB 402, the Alberta Court of Queen’s Bench dismissed applications to dismiss or stay the plaintiff’s action. The defendants had argued that the Alberta Court had no jurisdiction over the defendants in relation to the subject matter at issue in the action.
Deeth Williams Wallhttp://www.dww.com/articles/alberta-court-finds-jurisdiction-over-copyright-dispute-involving-seismic-data
The Supreme Court of Canada in Free World Trust v Électro Santé Inc, 2000 SCC 66 rejected the use of extrinsic documents such as file wrappers (patent prosecution histories) for claim construction, saying that allowing such evidence would undermine the public notice function of the claims and increase uncertainty. Hence, there is no equivalent of US file wrapper estoppel in Canada.
Deeth Williams Wallhttp://www.dww.com/articles/canada’s-federal-court-questions-no-file-wrapper-estoppel-on-claim-construction
On July 28, 2016, in AGIS v Life360, the US Court of Appeals for the Federal Circuit (CAFC) affirmed a district court’s finding of indefiniteness using a strict means-plus-function approach to claim construction, thus finding AGIS’s claims to be invalid.
Deeth Williams Wallhttp://www.dww.com/articles/us-court-of-appeals-for-federal-circuit-affirms-claim-indefiniteness-of-coined-terms
Gary Fung, Canadian founder of isoHunt Web Technologies (isoHunt), has settled his last remaining legal dispute after a decade of litigation with media and movie industries over the now defunct isoHunt search engine. Music Canada, formerly the Canadian Recording Industry Association (CRIA), had launched the action in 2006 after Fung refused to take down the engine that delivered indexes of torrent files that could be used in conjunction with peer-to-peer software to download music, movies and other files from other users’ computers.
Deeth Williams Wallhttp://www.dww.com/articles/isohunt-founder-settles-last-outstanding-case-for-66-million
In BASCOM Global Internet Services, Inc v AT&T Mobility LLC, (Fed Cir June 27, 2016), the US Court of Appeals for the Federal Circuit (CAFC) released its latest opinion rejecting a patent-eligibility challenge.
Deeth Williams Wallhttp://www.dww.com/articles/bascom-v-att-filtering-internet-content-found-patenteligible
Innovation, Science and Economic Development Canada, in conjunction with the Canadian Intellectual Property Office (CIPO), have extended the consultation on a proposed governance framework for the IP profession until August 31, 2016. The consultation builds on CIPO’s Modernizing the IP Community report, which resulted in the development of a new statutory protection for confidential communications between IP agents and their clients.
Deeth Williams Wallhttp://www.dww.com/articles/consultation-on-a-governance-framework-for-intellectual-property-agents-extended
On July 5, 2016, Brown J of Canada’s Federal Court allowed a prohibition application by Bayer Inc (Bayer) against Fresenius Kabi Canada Ltd (Fresenius) concerning Fresenius’ generic moxifloxacin hydrochloride (HCl) injection (Bayer’s AVELOX I.V.®) and Bayer’s Canadian Patent No.
Deeth Williams Wallhttp://www.dww.com/articles/canada’s-federal-court-finds-generic’s-noninfringement-allegation-justified-but-grants
On June 30, 2016, in Boaden Catering Limited v Real Food For Real Kids Inc (2016 ONSC 4098), the Ontario Superior Court (ONSC) quashed all claims brought by the plaintiff, Boaden Catering Limited (Boaden), in a summary judgment motion.
Deeth Williams Wallhttp://www.dww.com/articles/ontario-superior-court-quashes-domain-name-passing-off-copyright-and-trademark
In MacNutt v Acadia University (2016 NSSC 160), the Supreme Court of Nova Scotia (the Court) dismissed an application claiming infringement of copyright in the applicant’s architectural concept drawings prepared for Acadia University. The Court found that the applicant’s concept drawings were “distinctly different” from the plans used by the University.
Deeth Williams Wallhttp://www.dww.com/articles/nova-scotia-supreme-court-dismisses-claim-for-copyright-infringement-architectural
On June 23, 2016, in Alexion Pharmaceuticals Inc v Attorney General of Canada, 2016 FC 716, the Federal Court (FC) struck Alexion’s application seeking a declaratory relief that sections 80 to 86 and the words “in any proceeding under section 83” of section 87(1) of the Patent Act, (the impugned provisions) are unconstitutional and ultra vires.
Deeth Williams Wallhttp://www.dww.com/articles/canada’s-federal-court-dismissed-alexion’s-challenge-to-jurisdiction-of-patented-medicine
1. Cancer Immunotherapy Pilot Program
On June 29, 2016, the USPTO launched a Cancer Immunotherapy Pilot Program to accelerate applications pertaining to cancer immunotherapy. The objective of the Pilot Program is to complete the examination of cancer immunotherapy applications within twelve months of special status being granted at no additional fee. The Pilot Program will run for twelve months and is open to both US and international applicants.
Deeth Williams Wallhttp://www.dww.com/articles/uspto-news-launch-of-new-pilot-programs-and-patent-eligibility-guidance