Proposed amendments to overhaul the patent linkage regime and add certificates of supplementary protection were published today in the Canada Gazette, Part 1. Amendments to the Patented Medicines (Notice of Compliance) Regulations will replace the current summary procedures with full actions including rights of appeal. New Certificate of Supplementary Regulations are proposed to provide for up to two years of additional exclusivity based on the time to obtain a notice of compliance for a drug containing a new medicinal ingredient or combination of medicinal ingredients. A number of other proposed regulatory amendments relating to CETA were also published. There is a 15-day consultation period.
All posts by Alan Macek
CETA
Canada and the EU have announced that they have agreed to set September 21, 2017 as the date to start the provisional application of CETA. Continue reading CETA
Promise Doctrine
In a unanimous decision, the Supreme Court held today that the promise doctrine is not the correct approach to determine whether a patent has sufficient utility. As a result, the lower court decisions finding the patent at issue directed to Esomeprazole/Nexium invalid for want of utility, were set aside.
Trademark Exam
The trademark agent qualifying exam details have been announced with the exam to take place on November 28, 2017. Sign up deadlines and details are on CIPOs website.
Global Injunction
The Supreme Court of Canada issued its decision today in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, with the majority holding in the 7-2 decision that the trial judge should be given deference in determining an interlocutory injunction, and where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world, including in this case against third-party Google. The underlying proceeding related to passing off and trade secret infringement by a defendant which was conducted outside B.C. through a series of changing websites.
CETA Implementation
According to an article about the timing of CETA implementation by the CBC, “the European pharmaceutical industry doesn’t want the EU to set a date to start implementing the deal until Canada publishes and consults on some regulatory changes promised to generic drug manufacturers, and some member states are expressing these concerns to the European Commission.” Implementation of CETA requires among other things, amendments to the patent linkage system and patent term adjustment (see earlier post).
Promise Doctrine
The Supreme Court announced that it will be releasing the decision in AstraZeneca Canada Inc. et al. v. Apotex Inc. et al. on Friday, June 30th. It is expected that the decision will consider whether lower courts erred in law in finding the patent invalid: (i) on the basis of a “promise of the patent” utility doctrine; and/or (ii) by applying an incorrect standard for patent utility.
For those on Twitter, the Federal Court has now joined as @FedCourt_CAN_en and @Courfed_CAN_fr. You can also follow me at @amacek. Continue reading Twitter
Forum Selection Clauses
The Supreme Court of Canada issued its decision today in Douez v. Facebook, Inc., in which the majority, in a split decision, allowed the appeal and held that the forum selection clause should not be enforced. The plaintiff sought certification for a class action against Facebook alleging the company used her name and likeness without consent for the purposes of advertising, contrary to BC’s Privacy Act. A forum selection clause in the terms of use required disputes to be resolved in California under California law.
Also today, the Supreme Court announced it would release its decision next week in Google Inc. v. Equustek Solutions Inc. et al. on extraterritorial injunctions. Continue reading Forum Selection Clauses
Judicial Appointments
Judges were appointed to the courts in Ontario, Quebec, British Columbia, Alberta and the Federal Courts. John Laskin of Torys was appointed a judge of the Federal Court of Appeal and William Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, was appointed a judge of the Federal Court.