Intellectual Property
InvestigationsOur Blog
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A desire to expedite patent disputes may result in a party pursuing summary adjudication. We have previously commented on a number of cases relating to the use of summary proceedings for resolving patent cases in Canada. In particular, in the Federal Court of Appeal’s 2022 decision in Gemak Trust v Jempak Corporation, the FCA held that summary judgment is not appropriate where there are serious issues with respect to the credibility of witnesses, and the Court observed more generally that “while patent infringement issues are not by definition excluded from the ambit of the summary judgment process, they tend to raise complex issues of fact and law that are usually better left for trial”. We noted that in Gemak, the FCA was tapping the brakes on a trend towards increased adoption of summary proceedings in patent cases, and that for parties interested in summary adjudication, summary trial may be a more attractive option, particularly where witness credibility, and especially expert credibility, is likely to be an issue.
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The multifaceted nature of generative AI is bound to create legal complexities at the intersection of intellectual property law and class actions, as this emerging technology disrupts not only the tech landscape but the legal one too.
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Did Drake respond to an alleged feud with fellow artists, including Kendrick Lamar and Rick Ross? As reported by the LA Times, a track titled ‘Push Ups (Drop and Give Me 50)’ appeared online recently, taking aim at Lamar and several of his recent musical collaborators. However, this track remained unclaimed on any of Drake’s official platforms, causing some to question whether this track was fan-generated using artificial intelligence. This cynicism may be justified: Drake is reportedly no stranger to having to denounce fan-generated songs, and Lamar’s rumoured response was actually the work of artificial intelligence and another rapper.
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The current landscape is inundated with narratives surrounding artificial intelligence and its intersection with the law. From the New York Time’s lawsuit launched against OpenAI in December 2023, to the BC lawyer reprimanded for citing fake AI-generated cases, to the lying Air Canada chatbot, the legal and mainstream media is full of stories of AI or people using AI running up against traditional legal doctrine and practice. Yet, amidst this surge of AI-related incidents, Canada finds itself grappling with more questions than answers.
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In two decisions released on the same day, the Federal Court has confirmed that applications are summary procedures that exclude the right or ability to examine witnesses who have not sworn affidavits.
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In Canada, a generic pharmaceutical company can commence an action for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations (the “Regulations”), if it successfully defends a patentee’s claims in an earlier section 6 prohibition proceeding. Section 8 actions are often complex, requiring a determination of the alleged loss suffered by assessing a “but-for world” where the generic would have received regulatory approval and commenced sales at an earlier date, but for having been blocked by the operation of the Regulations. Depending on the drug(s) and patent(s) at issue, there may be several independent section 8 actions against a patentee, each started by a different generic plaintiff (see our previous post). When distinct section 8 actions are commenced pertaining to the same drug(s), patent(s), and patentee(s), issues as to relevance and scope of each action may arise.
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Few pop icons have navigated the art of protecting their intellectual property as well as Taylor Swift. Not only does Taylor Swift have an outstanding knack for creating number one hits, a keen eye for branding, and an entrepreneurial spirit that is inspiring, she is also business savvy in protecting her trademarks and copyright. On this International Women’s Day 2024 we look to Taylor Swift as an inspiration in IP protection, enforcement, and commercialization, as we celebrate women who “could show you incredible things”.
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If your 2024 has been too busy to keep up with caselaw, below we summarize and provide the key takeaways from pharmaceutical patent decisions that have been issued from the Federal Court and Federal Court of Appeal in the last two months.
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It has been approximately six months since the Federal Court of Appeal’s decision in Canada (Attorney General) v Benjamin Moore & Co (the “Benjamin Moore Appeal”) was released, yet no practice direction has been issued from the Canadian Intellectual Property Office (“CIPO”) to address the decision, and there is no consistency in the way that computer-implemented inventions are being examined. As the patent bar awaits a decision on the leave application to the Supreme Court of Canada, we provide our thoughts on the Federal Court of Appeal’s decision, and the missed opportunity it was.
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On August 25, 2023, Canadians were advised that KLEENEX was blowing out of town and would no longer be available in Canada (see Globe & Mail article).
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