In this case, the Court considered the validity and infringement
of three patents having to do with processes for the synthesis of
lithium mixed metal cathode materials for use in lithium ion
batteries. One patent was held valid and infringed. Infringement
was not considered with respect to the other two patents. The Court
held the second patent, a divisional of the first valid and the
third patent invalid.
There were no validity challenges to the first patent. Regarding
the second patent, the Court considered insufficiency allegations
and held that the inventor must define the nature of the invention
and describe how to put it into operation. The Court held that it
was not satisfied that the Defendant met its burden of establishing
that the patent should be void for insufficiency.
The Court then considered the allegations of misappropriation of
the invention pursuant to section 53 of the Patent Act. The Court
refused to infer any intention to mislead, holding that the
evidence did not establish to the Court's satisfaction that the
named inventors did not invent what was claimed in one of the
patents. Furthermore, the Court did not accept the leap proposed by
the Defendant that the Plaintiff filed for a divisional to avoid
having to deal with the patent examiner to bypass some of the
objections raised. The Court held there are other explanations for
requesting a divisional. Thus, the Court dismissed the attack on
the basis of section 53.
Regarding the third patent in suit, the Court considered
allegations of anticipation. The Court followed established case
law and held that the cited piece of prior art constituted an
Finally, the Court considered remedies and held that the
Plaintiff was entitled to reasonable compensation, in the nature of
reasonable royalty, for infringement of the first patent prior to
issuance. The Court also granted a permanent injunction and held
that the Plaintiff could elect between damages and accounting of
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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