Apotex has successfully alleged that Teva's patent to
"Stable Compositions Containing [Rasagiline]" will not be
infringed by Apotex's use of a formulation containing an
excipient that is not a "pentahydric or hexahydric
alcohol". The specific identity of the excipient was redacted
and Apotex has to notify the Court within 48 hours of obtaining an
NOC so that the identity of the excipient may be revealed in the
In a decision that turned on the facts, the Court construed the
term "pentahydric or hexahydric alcohol" to mean alcohols
that contain in total five or six hydroxyl groups. The Apotex
products were not found to infringe because they contain more than
60% by weight of the redacted excipient.
In light of this finding of non-infringement, the Court declined
to consider the arguments relating to the validity of the
Court Enforces a Settlement Agreement Even Though One Party
Denied Such an Agreement Existed
Drug: gatifloxacin and gatifloxacin ophthalmic solution
Allergan brought a motion to enforce a settlement agreement that
Apotex denies was made. Allergan had sued for infringement and
Apotex wrote a without prejudice letter offering terms to settle
the proceeding. The terms included an undertaking to only use
gatifloxacin API for regulatory and/or experimental use, not
commercial use, until the patent expires.
The Court found it had jurisdiction to determine whether
settlement had been reached. The Court reviewed the history of the
correspondence between the parties and found that the parties had
essentially reached an agreement early on in the negotiations, and
the later correspondence was "directed largely to
trivia". Finding an offer and acceptance, the Court ordered
enforcement of the settlement agreement.
Ramipril Section 8 Appeal Dismissed From the Bench by the
Supreme Court of Canada
On Monday, April 20, 2015, the Supreme Court of Canada heard the
appeal of 2014 FCA 68, relating to the issue of damages
under section 8 of the PM(NOC) Regulations. The summary of the
appeal provided by the Court states that one issue was whether
lower courts erred in interpreting s. 8 of the PM(NOC)
Regulations as providing a damages framework that overcompensates
claimants and leads to judicial inconsistencies.
Eclectic Edge sought to register four marks based on use in
Singapore and on proposed use in Canada. Each was refused by the
Registrar. The four applications concerned VALENTINE SECRET,
VALENTINE SECRET & DESIGN, VALENTINE SECRET LINGERIE &
DESIGN and VS A SECRET THAT WOMEN LOVE & DESIGN.
The proposed marks were to be used with women's clothing,
undergarments, etc. Victoria's Secret had opposed.
On appeal to the Federal Court, the first three listed
applications above were allowed. Only VS A SECRET THAT WOMEN LOVE
& DESIGN was refused for likely being confusing with the
Respondent's VS and VICTORIA SECRET marks.
New evidence filed on appeal included evidence that
"secret" was a commonly appearing word for
trademarks, applications for trademarks, and business names. As a
result, the Court found a purchaser would focus on the remaining
part of the marks to distinguish the two. For example, given the
differences in appearance and sound between the VICTORIA'S
SECRET mark and the Respondent's VALENTINE SECRET mark, the
Court held there was no likelihood of confusion.
As to the last VS mark, the Court found that the
Respondent's marks VS SPORT and VS PRO is extremely well known
as the abbreviation of the VICTORIA'S SECRET marks, and the
proposed mark would likely be confusing.
Class Action for Copyright in Plans of Survey Remains Certified
A proposed class proceeding claims that land surveyors retain
copyright in the plans of survey they prepare and register in
Ontario's land registry system and that the provision of copies
of surveys to users of the system infringes the surveyors'
The class proceedings judge had refused to certify the action,
but on appeal to the Divisional Court, the action was certified on
the basis of a revised class definition and revised common issues.
Now, the Court of Appeal for Ontario has sided with the Divisional
Court, and the revised litigation plan is adequate and may
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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