In this case, one claim of a patent was at issue in the
proceeding. The claim related to the use of pregabalin or its
racemate to treat pain. The Court held that the allegations of
overbreadth and a lack of sound prediction were justified. The
allegations as to obviousness were held not to be justified.
In the case of overbreadth, the Court held that the inventor
never tested nor contemplated the testing of the racemate, and
furthermore, that pregabalin is only useful in respect of chronic
or persistent pain, not acute pain. Thus, the allegation of
overbreadth was justified.
In the case of sound prediction, the Court reviews some history
of case-law on the subject, concluding with the recent decision of
the Supreme Court in Teva v. Pfizer. The Court concludes
that the Supreme Court's recent comments are obiter, and thus
previous statements by the Supreme Court and the Federal Court of
Appeal are good law. The Court then holds that the basis for a
sound prediction, at least with respect to a pharmaceutical, must
be disclosed in the patent. The Court then found the allegations as
to a lack of sound prediction to be justified, as there were types
of pain listed in the patent that pregabalin does not treat.
Furthermore, there was no factual basis and no line of reasoning
set out in the patent to predict that the racemate would work.
Flyers Used in Connection with Wares when Online Orders
This case was an appeal from a decision of the Registrar of
Trade-marks, expunging a trade-mark registration for lack of the
requisite use of the mark during the relevant period of time. The
Applicant filed new evidence in the appeal and the Respondent did
not appear to dispute the appeal.
The Court considered the new evidence of use and allowed the
application. In this case, the issue was whether the flyers
associating the mark with the wares were used in the ordering and
purchasing of those wares, when those purchases were made online.
The evidence showed that many purchases were made on the day the
flyer was released. Thus, the Court held that the flyer was used in
connection with the wares for the online ordering.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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