(Don’t) Keep It in the Family: Federal Court Grants Solicitor’s Eyes Only Protection in Trademark Dispute Between Family Companies

In Ma v Fivalco Industries Corporation, the Federal Court granted a protective order that included a Solicitor’s Eyes Only (SEO) designation over confidential financial documents. This case provides an example of where a moving party has met the evidentiary burden required for this exceptional remedy. Here, the Court was satisfied that there was a risk of harm if the documents were disclosed due to the significant degree of animosity and misconduct between the parties who were competitors in a small market.

Andrew Moeser & Amber Blair | July 7, 2025

Punished for the Sins of the Baby?: Liability of Foreign Parent Companies for Patent Infringement in Canada

The recent decision in Munchkin Inc v Angelcare Canada Inc presents an example of circumstances in which foreign parent companies can be held liable for patent infringement in Canada.

Jordana Sanft, Andrew Moeser & Devon R. Kapoor | October 17, 2024

Summary Judgment Still Appropriate for Certain Patent Infringement Claims

A desire to expedite patent disputes may result in a party pursuing summary adjudication. We have previously commented on a number of cases relating to the use of summary proceedings for resolving patent cases in Canada. In particular, in the Federal Court of Appeal’s 2022 decision in Gemak Trust v Jempak Corporation, the FCA held that summary judgment is not appropriate where there are serious issues with respect to the credibility of witnesses, and the Court observed more generally that “while patent infringement issues are not by definition excluded from the ambit of the summary judgment process, they tend to raise complex issues of fact and law that are usually better left for trial”. We noted that in Gemak, the FCA was tapping the brakes on a trend towards increased adoption of summary proceedings in patent cases, and that for parties interested in summary adjudication, summary trial may be a more attractive option, particularly where witness credibility, and especially expert credibility, is likely to be an issue.

Jordana Sanft & Andrew Moeser | May 15, 2024

Policing Scope Creep: Relevance in Canadian Pharma Disputes for Section 8 Damages

In Canada, a generic pharmaceutical company can commence an action for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations (the “Regulations”), if it successfully defends a patentee’s claims in an earlier section 6 prohibition proceeding. Section 8 actions are often complex, requiring a determination of the alleged loss suffered by assessing a “but-for world” where the generic would have received regulatory approval and commenced sales at an earlier date, but for having been blocked by the operation of the Regulations. Depending on the drug(s) and patent(s) at issue, there may be several independent section 8 actions against a patentee, each started by a different generic plaintiff (see our previous post). When distinct section 8 actions are commenced pertaining to the same drug(s), patent(s), and patentee(s), issues as to relevance and scope of each action may arise. 

Jordana Sanft, Andrew Moeser & Martin Brandsma | April 12, 2024

Understanding Patents

Andrew Moeser will be sharing his expertise on patent enforcement at the joint Intellectual Property Institute of Canada and McGill University Summer IP Course. Andrew will lead a discussion on Patent Enforement: Infringement, as well as participate on a Mock Trial focused on Expert Reports and Cross-Examination of a Witness.

Andrew Moeser | July 18, 2023

Shocking Result? Summary Trial on Battery Jump Starter Patent Fails to Get Going

Patent infringement cases are complex and technical, and historically Canadian courts were reluctant to endorse summary disposition in the patent context. However, in recent years there has been an increased trend towards the application of summary proceedings in this area. In particular, we have previously commented on decisions of the Federal Court (“FC”) (Canmar, Kobold, and Janssen) and Federal Court of Appeal (“FCA”) (Canmar and ViiV) that demonstrate the Court’s willingness to approve summary proceedings in patent cases under the appropriate circumstances. Last fall, the FCA decision in Gemak was interpreted by some commentators as a return to the historical position, but in our view, Gemak can be viewed as tapping the brakes on summary judgment rather than signalling a more sweeping reversal of the trend towards summary adjudication.

Andrew Moeser & Amber Blair | May 4, 2023

To Consolidate or Not to Consolidate – This is the Federal Court’s Question

In a recent decision, Takeda Canada Inc v Apotex Inc, the Federal Court dismissed the Plaintiff, Takeda’s, motion for consolidation of two actions against Apotex relating to Takeda’s dexlansoprazole (DEXILANT) under section 6 of the Patented Medicines (Notice of Compliance) Regulations (the “PM(NOC) Regulations”).

Jordana Sanft, Andrew Moeser & Amber Blair | January 30, 2023

FCA Taps the Brakes on Summary Judgment in Patent Cases

Over the last several years there has been a trend towards increased adoption of summary proceedings for resolving patent cases in Canada. In particular, we have previously commented on decisions of the Federal Court (e.g., Kobold partial SJ motion) and Federal Court of Appeal (e.g., Canmar Appeal) that signalled a willingness to move away from the historic reluctance of those courts to approve summary judgment for patent infringement actions. We had also noted that summary proceedings were a trend to watch this year.

Andrew Moeser & Jordana Sanft | September 8, 2022

The Federal Court Clarifies the Burden of Proof in Summary Trial

In 2022, the use of summary proceedings in patent matters continues at the Federal Court. In Janssen Inc v Pharmascience Inc, the Court:

Jordana Sanft, Andrew Moeser & Kaitlin Soye | January 26, 2022

Partial Summary Judgment Narrows Patent Infringement Case

The recent patent infringement case of Kobold Corporation v NCS Multistage Inc is interesting for two reasons: (1) it shows how a summary judgment motion can advance a case even if certain issues require a full trial; and (2) it is the first time a court has interpreted the defence of prior use since the 2018 amendments to section 56 of the Patent Act. This post considers the use of summary adjudication. Click here to read our companion post which considers the substance of the prior use defence.

Andrew Moeser & Kaitlin Soye | January 13, 2022

The Train Has Left the Station: The Federal Court of Appeal Confirms That Opposition Won’t Derail a Summary Trial

As part of our series on summary adjudication, we previously commented on the Federal Court’s recent use of a summary trial to resolve a patent infringement dispute. The abbreviated procedure of a summary trial addresses many of the Federal Court’s traditional concerns with summary judgment (e.g., lacking live evidence).

Andrew Moeser & Jim Lepore | June 21, 2021

Don’t Sit Back During Summary Judgment: Federal Court of Appeal Weighs in on Summary Judgment for Patent Infringement Actions

The Federal Court of Appeal has historically held that summary judgment is usually not the preferred means of resolving patent infringement actions. These cases are inherently complex and technical, and usually involve expert evidence. In the Federal Court of Appeal’s view, a trial judge who has had the opportunity to hear all of the evidence live is best suited to resolve these disputes (see Suntec Environmental Inc v Trojan Technologies Inc).

Sana Halwani, Andrew Moeser & Jim Lepore | January 26, 2021