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For those of us who take an interest in American patent litigation, the US District Court for the Eastern District of Texas (also known as the “Rocket Docket”) has been a fabled place where a third (or more) of US patent suits are heard, cases get to trial in two years or less, and patentees are king.  It has also been the venue of choice for patent suits brought by non-practicing entities (NPEs, sometimes unflatteringly called “patent trolls”), who have sought to capitalise on these benefits.

That fabled place is no more.

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It’s no surprise to litigators that some courts tend to be relaxed with the rules of evidence in civil cases.  In many contexts, courts are prepared to admit inadmissible hearsay evidence and simply address evidentiary concerns by noting that such evidence may be given less weight. That type of approach was often taken in cases under section 8 of the Patented Medicine (Notice of Compliance) Regulations.

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A recent Federal Court decision has given new meaning to the notion of criminalizing marijuana. The case of Trans-High Corporation v Hightimes Smokeshop and Gifts Inc (2015 FC 1104) is perhaps one of the first times marijuana related trade-mark infringement has landed someone in jail.

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It is league table season.  The various ratings agencies issue their lists of "best this" or "best that" in various categories, and simultaneously interview for next year's "best that" and "best this".  The patent litigation lists remain strangely impervious to gender equality.   I have been reflecting on why that should be.

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Refusals motions have long been the scourge of the intellectual property bar. Prothonotary Aalto recently observed: "Refusals motions that last days on end because counsel move on every single refused question including the most trivial without considering whether the questions are truly essential or not consume a disproportionate amount of time of the Court in dealing with them to the detriment of other litigants…" (Mediatube Corp. and Northvu Inc. v. Bell Canada and Bell Aliant Regional Communications, LP, 2015 FC 391 (Proth.))

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In industrial design, it pays to have it all. 

In a recent decision, the Federal Court of Appeal held that while a purely functional design does not attract protection (as per section 5.1(a) of the Industrial Design Act), an industrial design that has a functional aspect can still be enforced if the design is also visually appealing.

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In the recent decision of Imperial Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100, the Federal Court of Appeal used an appeal of a particulars motion in an industrial designs case to eliminate the prior distinction between the standard of review of discretionary or interlocutory orders and all other appeals from the Federal Court.

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In a rare and surprising turn of events, a full panel of the Supreme Court of Canada unanimously dismissed Sanofi-Aventis' appeal of its "Section 8" liability at the conclusion of oral argument on April 20. (Sanofi-Aventis v. Apotex Inc., 2015 SCC 20).

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A decision issued last month contains a useful synopsis by Justice Zinn of principles applicable to damages awards in patent infringement cases:  Eli Lilly & Co.  et al. v. Apotex Inc. 2014 FC 1254.

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The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing changes the risks innovators must consider.