Patents

Appeal in NOC Proceeding Dismissed as Moot
Janssen Inc. v. Teva Canada Limited, 2015 FCA 36

The Court of Appeal granted Teva’s motion to have an appeal from a NOC Proceeding dismissed as moot. The Respondent’s request for an oral hearing of the motion was denied.

The FCA held that the appeal was moot, as Teva had received its NOC. The FCA also refused to exercise its discretion to hear the appeal, holding that it would not serve judicial economy. The FCA dismissed the argument that the Comprehensive Economic and Trade Agreement with Europe should prompt it to hear the appeal, as the treaty has not yet been implemented by statute. Furthermore, a new Notice of Allegation relating to a different route of administration was held to not give rise to an adversarial context between the parties in this case.

Finding of Non-Infringement Upheld on Appeal
Bristol-Myers Squibb & Gilead Sciences, LLC v. Teva Canada Limited, 2015 FCA 3

The Court of Appeal dismissed an appeal of a decision of the Court in a NOC proceeding finding that an allegation of non-infringement was justified.

The Court of Appeal confirmed the finding by the Court that the tests conducted by the Appellants were not shown to be a “reliable proxy” for the process used by Teva to manufacture its tablets. As a result, the Appellants had not proven that the tablets made by Teva infringed the patent.

The Court of Appeal stated that the requirement that a second person present evidence to put their allegations into play relates only to allegations of invalidity in light of the presumption of validity. There is no initial onus on the second person to introduce evidence. The Court of Appeal also found that the Appellants did not demonstrate any palpable and overriding error by the Court in failing to draw an adverse inference against Teva for not producing its tablets.

Copyright

Alberta Court Has Jurisdiction to Hear a Claim for Copyright Infringement after Materials are Sent from Newfoundland and Labrador to Alberta
Geophysical Service Incorporated v Arcis Seismic Solutions Corp, 2015 ABQB 88

Geophysical Service Incorporated (GSI) commenced an action that includes a claim for copyright infringement. GSI claims all IP rights in the data it gathers and markets to oil and gas exploration companies. Some of the data GSI collects must go to the National Energy Board (NEB) who can, after a period of time has elapsed, disclose the confidential information to those who apply for it. GSI claims the NEB sent copies of its data to the other defendants and failed to protect GSI’s property interest.

The defendants claimed that Alberta lacked jurisdiction to hear the claim. In the alternative, the defendants argued if there was jurisdiction, the better forum would be Newfoundland and Labrador. Although the master had agreed with the defendants and dismissed the claim, this ruling was overturned on appeal to the Queen’s Bench.

Following the Supreme Court’s ruling in SOCAN v. Cdn. Assn. of Internet Providers, 2004 SCC 45, Alberta was found to be the site of any alleged copyright infringement for the purposes of this application due to the fact that the materials were sent to and received in Alberta. That provided a real and substantial connection to Alberta for the subject matter of the litigation. The presumption was not rebutted by the fact that parts of the copyright infringement occurred in Newfoundland and Labrador.

Other Industry News

Health Canada has updated the Guidance Document: Patented Medicines (Notice of Compliance) Regulations.

Authors

Chantal Saunders 
CSaunders@blg.com
613.369.4783

Beverley Moore 
BMoore@blg.com
613.369.4784

Adrian J. Howard 
AJHoward@blg.com
613.787.3557

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