Public Disclosure vs. Confidentiality Protection: The FCA Finds the Proper Balance

In FibroGen, Inc v Akebia Therapeutics, Inc, the Federal Court of Appeal set aside an order requiring a party to make certain fact witness statements from a discontinued action public, restoring the proper balance and safeguarding the confidentiality of documents that had been designated as confidential or highly confidential information.

Jordana Sanft & Kaitlin Soye | August 10, 2022

The High Bar in Dismissing a Canadian Patent Action Based on a Similar Foreign Proceeding

Following a ‘with prejudice’ dismissal of a patent infringement action in the US, the defendant sought summary judgment in the parallel Canadian proceeding, Google LLC v Sonos, Inc. The defendant argued that: (1) there was no genuine issue for trial on infringement considering admissions by the plaintiff in the US; or (2) summary judgment was warranted under the doctrines of res judicata or abuse of process. This case is interesting because of the substantial similarities between the patents at issue in the US and Canadian actions, including identical claims. Notwithstanding these similarities, the motion for summary judgment failed. Among other reasons, the Court concluded that the plaintiff had not made any factual admissions in the US proceeding, and even if it had, any such factual admissions would not necessarily be determinative of Canadian infringement because of legal differences in claim construction between the US and Canada.

Kaitlin Soye & Jacqueline Chan | March 11, 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

Affirming the ‘Burden’ in the anti-SLAPP Threshold Burden

Earlier this week the Court of Appeal for Ontario released their decision in Sokoloff v Tru-Path Occupational Therapy Services Ltd. This appeal concerns the legislative framework set out in s. 137.1 of the Ontario Courts of Justice Act ("CJA"), colloquially known as the “anti-SLAPP” framework.

Kaitlin Soye & Katie Glowach | November 20, 2020

Patent Injunctions: “Anything but Unusual”

The popular Canadian pastime of snowmobile litigation has turned up yet another interesting decision (Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 946) – this time on the topic of injunctions. This decision of Justice Roy arose from the moving parties’ attempt to vary an Order issued by the Federal Court in Bombardier Recreational Products Inc v Arctic Cat Inc, 2020 FC 691. As Justice Roy noted, the Order itself was “anything but unusual,” and was representative of injunctions issued in patent cases time and time again. Given this and the existing jurisprudence, it was perhaps a predictable result that the parties were denied any relief.

Veronica C. Tsou & Kaitlin Soye | October 16, 2020

Superior Court Update from the Honourable Chief Justice Morawetz

Amid the COVID-19 crisis, advocates, like all Ontarians, are facing immediate and diverse challenges. Pandemic or not, access to justice is a key foundation to our judicial system. Today, the Honourable Chief Justice Geoffrey B. Morawetz of the Ontario Superior Court of Justice hosted a virtual fireside chat to address the priorities of the Superior Court of Justice amid the COVID-19 crisis.

Kaitlin Soye | April 6, 2020