This was an appeal of an Order granting an Order of prohibition.
The trial decision is found here.
The issue to be determined by the Court of Appeal related to
whether the allegation of lack of utility was justified. The Court
of Appeal began by considering the burdens on the respective
parties. The Court of Appeal held "the onus on Pharmascience
to put its allegations "into play" cannot be satisfied by
the mere fact of detailing its allegation in its notice of
allegation." The Court of Appeal concluded that the
application judge erred in law by failing to apply the correct
legal standard in this regard. The Court of Appeal also found that
the application judge erred in law in considering the legal
standard that AstraZeneca was required to meet to prove that its
invention was useful. This legal standard is proof on the balance
The Court of Appeal held that the patent did not provide
information about how many samples were tested and what the
individual results were in the experiments set out in the patent,
and as a result, "it is impossible to say that the
experiments actually prove that which the inventors claim they
prove." The Court of Appeal noted that the patent did not
provide information to allow a third party to confirm the validity
of the experimental results, and AstraZeneca's expert did not
provide this information, and therefore AstraZeneca did not put
sufficient evidence before the Court to establish allegation of
lack of utility was not justified. The appeal was granted.
TMOB Erred in not Finding "Director Indirect Control of
the Character or Quality of the Mark's Use"
The Trade-marks Opposition Board (TMOB) previously
refused to register Cathay Pacific's application to
register five marks, including ASIA MILES. The TMOB found that
Cathay Pacific had not established use in Canada and there was a
likelihood of confusion with the existing AIR MILES mark. The
Federal Court has found that decision unreasonable, and has
returned it to the TMOB for reconsideration.
The Court held that the Board erred in failing to credit Cathay
Pacific with use of its mark in Canada due to an unclear licensing
arrangement. Even in the absence of a written licence the Court
found there was sufficient evidence for the TMOB to conclude that
Cathay Pacific had "direct or indirect control of the
character or quality" of the mark's use. The Court felt
that this finding then led to additional errors that should be
reconsidered by a new panel of the TMOB.
Nominal Damages Awarded for Infringement when no Evidence of
Damages is Provided
Default judgement was awarded against a defendant for trade-mark
infringement. The defendant was served but never participated in
the proceeding, only writing a letter saying they destroyed
everything with the mark and will not use it again.
No actual damages were proven, but the Court awarded a nominal
$1000 in damages. No injunction or order for delivery up was
Government Announces Coming into Force of the Notice and Notice
The Notice and Notice regime is the final step in implementing
the Copyright Modernization Act. The Notice and Notice
regime is a system that will legally require internet
intermediaries, such as ISPs and website hosts, to take action upon
receiving a notice of alleged infringement from a copyright
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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