Close Only Counts in Horseshoes: Federal Court of Appeal Reins in the PMPRB

The Federal Court of Appeal’s decision in Galderma Canada Inc v Canada (Attorney General) (“Galderma FCA”) arose from what seemed like a straightforward production order, but ended up providing clear guidance on the jurisdiction of Canada’s Patent Medicine Prices Review Board (PMPRB). The key takeaway: the PMPRB’s jurisdiction extends only to patented medicines, not all medicines.

Jordana Sanft & Jim Lepore | December 6, 2024

Password Protected! The Federal Court Revisits TPMs

Savvy content creators and copyright owners often use technical protection measures (also known as “TPMs”) to restrict what users can do with their works (often digital materials). The prohibition against circumventing TPMs is rooted in sections 41 and 41.1 of the Copyright Act, but their fit within the broader Copyright Act is the subject of ongoing debate.

Sana Halwani, Jim Lepore & Alexis Vaughan | June 13, 2024

Innovation in Limbo: A Disappointing Turn in the Benjamin Moore Saga

In our last comment on non-patentable subject matter, we provided our thoughts on the Federal Court of Appeal’s decision in Canada (Attorney General) v Benjamin Moore & Co (the “Benjamin Moore Appeal”). As a top line, this decision was a loss for Canadian innovation. As we discussed in detail, the Federal Court of Appeal missed an opportunity to clarify the law of patentable subject matter, adopt the IPIC framework endorsed by Associate Chief Justice Gagné, and signal to the Canadian Intellectual Property Office (“CIPO”) that its examination practices were out of step with the law. Instead, the Federal Court of Appeal further complicated an already complex area of the law, which will increase the costs of innovators to register their technologies in Canada.

Sana Halwani & Jim Lepore | May 22, 2024

AI in the Courtroom: The Quest for Legal Precedents

The current landscape is inundated with narratives surrounding artificial intelligence and its intersection with the law. From the New York Time’s lawsuit launched against OpenAI in December 2023, to the BC lawyer reprimanded for citing fake AI-generated cases, to the lying Air Canada chatbot, the legal and mainstream media is full of stories of AI or people using AI running up against traditional legal doctrine and practice. Yet, amidst this surge of AI-related incidents, Canada finds itself grappling with more questions than answers.

Sana Halwani, Jordana Sanft & Jim Lepore | April 18, 2024

Don’t Make Me Say It a Fourth Time: Federal Court Weighs in (Again) on Patentable Subject Matter

Associate Chief Justice Gagné’s decision in Benjamin Moore & Co v Attorney General of Canada, 2022 FC 923 (“Benjamin Moore”) marks the second time that the Federal Court has had to weigh in to tell the Commissioner that it was not applying the correct test for patentability of computer-implemented inventions. Unlike past decisions (discussed below), the Court in Benjamin Moore, provided instruction on how the Commissioner ought to assess patentability of such inventions. As a top line, these instructions appear to level the playing field – reducing the artificially high standard that computer-implemented inventions face during patent examination.

Sana Halwani & Jim Lepore | June 28, 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

The Other Shoe Has Dropped: Summary Judgment in the Federal Court

Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g., Suntec Environmental Inc v Trojan Technologies Inc).

Sana Halwani & Jim Lepore | November 25, 2020

The Times They Are a-Changin’: Summary Judgment in the Federal Court

Patent infringement actions are inherently complex and technical. They often involve complex scientific inquiries and expert evidence. The Federal Court has historically held that summary judgment—which does not include live evidence—is generally not the preferred means of resolving patent infringement actions. Instead, such determinations are best left to a trial judge who has had the opportunity to hear all of the evidence live (e.g. Suntec Environmental Inc v Trojan Technologies Inc).

Sana Halwani & Jim Lepore | June 9, 2020

Full Steam Ahead: Opposition Won’t Derail a Patent Infringement Summary Trial

In 2014, the Supreme Court of Canada recognized that the most painstaking procedure is not always the best procedure to resolve disputes – a culture shift was required to create timely and affordable access to the civil justice system (see Hryniak). This touchstone for access to justice is reflected in several courts’ rules of procedure, including the Federal Court of Canada.

Sana Halwani & Jim Lepore | April 9, 2020