Eli Lilly Canada Inc. v. Mylan Pharmaceuticals
ULC, 2015 FC 17 Drug: CIALIS® tadalafil The Court found that Mylan's allegations of lack of utility,
and specifically lack of sound prediction, and obviousness-type
double patenting were not justified. As a result, an Order of
Prohibition was granted. Dairy Processors Association of Canada v.
Dairy Farmers of Canada, 2014 FC 1054 This is a judicial review of the decision to not allow the
applicant to amend its Statement of Opposition to add new grounds
of opposition against five applications for trademarks filed by the
respondent. The Federal Court found the member erred in refusing to
grant leave to amend the Statements of Opposition in issue. The Court found that it was appropriate to subject this
interlocutory decision to judicial review. It was found that for it
not to be subject to review, alternative remedies must be available
in the context of the proceeding in issue. Since there were no
other effective remedies for the applicant to introduce the new
grounds of opposition that it puts forward, the decision was
subject to judicial review at this stage. The Court took note of a practice notice which provides that
leave to amend a statement of opposition will be granted if the
Registrar is satisfied that it is in the interests of justice to do
so having regard to all the surrounding circumstances
including: In reviewing the Registrar's decision, the Court found that
an error in law was made in not allowing an opposition based on
section 7 of the Trade-marks Act. A further error was
found in not comparing the prejudice suffered by not allowing the
amendment against the potential prejudice of allowing it.
Therefore, the refusal to allow the amendment was found to be
unreasonable and set aside. Alliance Laundry Systems LLC v. Whirlpool
Canada LP, 2014 FC 1224 The trade-mark "SPEED QUEEN" was originally registered
in 1941 for wares and services including laundry washing machines
and laundry dryers. The Mark was acquired by Whirlpool in 2004.
Alliance requested the Registrar issue a notice pursuant to section
45 of the Trade-marks Act to show use between October 5,
2008 and October 5, 2011. The registrar maintained the Mark and
Alliance appealed to the Federal Court. On the appeal Alliance argued that the respondent had not met
its evidentiary threshold: the how, where and when the trademark
has been used. It was argued the evidence did not show a
transaction in the normal course of trade, and that the photos of
the wares did not show the Mark prominently on the wares. It was
further argued that the evidence of use was a 10-year summary that
did not provide details for the relevant period. No new evidence was filed on appeal, and thus on the standard of
reasonableness, the Court found that although the evidence could
have been better, the outcome fell within the range of acceptable
outcomes defensible in fact and in law. The PMPRB has released the sixth edition of the New Drug Pipeline Monitor The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Patent Cases
Order of Prohibition Granted in respect of Use Patent
Trademark Decisions
Registrar's decision refusing to grant leave to amend a
statement of opposition found to be unreasonable
Low threshold for evidence shows SPEED QUEEN to have been used
in the relevant period
Other Industry News
ARTICLE
29 January 2015
Order Of Prohibition Granted In Respect Of Use Patent (Intellectual Property Weekly Abstracts Bulletin: Week Of January 26th, 2015)
The Court found that Mylan’s allegations of lack of utility, and specifically lack of sound prediction, and obviousness-type double patenting were not justified.