Expertise
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Practice Areas:
- Bar Admissions:
- Education:
- University of Toronto Faculty of Law (2009) JD
- McGill University (2005) MSc (Biology)
- McGill University (2001) BSc (Biology)
Details
- Bio
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- Blog Posts
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Andrew Moeser (he/him)
is a partner at Lenczner Slaght.
"Andrew has honed his advocacy skills to a fine point and is a creative strategist with an ability to understand the industry at hand." — IAM Patent 1000
Andrew’s practice is primarily focused on intellectual property litigation. In patent matters, Andrew has experience with industries such as pharmaceutical and biologics, information technology, and oil and gas. In trademark, copyright, and trade secret matters, Andrew has represented clients in disputes relating to software, gaming, and beauty products. Andrew also has experience in commercial litigation relating to environmental contamination, and in judicial reviews in regulated industries such as pharmaceuticals and renewable energy.
Andrew has represented clients before all levels of court in Ontario, the Federal Court and Federal Court of Appeal, and the Alberta Court of Appeal.
He has also acted pro hac vice in proceedings in the United States and has extensive experience as part of international teams litigating large cross-border disputes.
Andrew is also an Adjunct Professor at the University of Toronto Faculty of Law, where he supervises a legal clinic providing assistance to the Structural Genomics Consortium, a not-for-profit public-private partnership that engages in precompetitive basic science research to facilitate and enable the discovery of new medicines.
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Counsel to Andrómaco, a Mexican pharmaceutical company, a defendant in a dispute relating to the manufacture, approval, and distribution of a wound gel product in Mexico, the United States, and Europe. On a preliminary motion, successfully stayed the action for lack of jurisdiction.
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Maoz Betser-Zilevitch v Canadian Natural Resources Ltd
Counsel to the plaintiff in a patent infringement action involving oil & gas technologies, related to modular well pads used in heavy oil extraction.
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GlycoBioSciences Inc v Magna Pharmaceuticals Inc and Robert Van Osdel
Counsel to MAGNA Pharmaceuticals, Inc. a defendant in a dispute brought in Ontario relating to the approval and distribution of a wound gel product in the United States.
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Counsel to the intervener Professor Ariel Katz in an appeal to the Supreme Court of Canada addressing the interpretation of the “making available” provision of the Copyright Act, the role of the Copyright Board of Canada in determining legal questions, and the question of when copyrights trigger entitlements to royalties.
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Counsel to Rovi Guides (a subsidiary of Xperi Holding Corporation) in a patent infringement action involving four patents related to digital entertainment technologies.
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Merck Sharp & Dohme Corp et al v JAMP Pharma Corporation
Counsel to JAMP in a NOC action relating to JANUVIA (sitagliptin), a medication used to control high blood sugar in people with type 2 diabetes.
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Sakab Saudi Holding Company v Al Jabri et al
Counsel to Canadian cybersecurity suppliers in dispute between Saudi companies and former Minister of Saudi government. Successfully set aside Norwich Orders affecting the Canadian suppliers that had been obtained on an ex parte basis.
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Eli Lilly Canada Inc v Mylan Pharmaceuticals ULC
Counsel to Mylan in multiple related NOC proceedings and appeals relating to patents over CIALIS® (tadalafil); first generic challenge to CIALIS®. Mylan successfully justified allegations of invalidity and non-infringement in respect of a dosage patent and a formulation patent, which allowed Mylan to enter the market four years earlier than it would have otherwise. Lilly abandoned its appeal of the decision on the dosage patent, and the decision on the formulation patent was upheld by the Federal Court of Appeal. (Prior to joining Lenczner Slaght)
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Teva Pharmaceutical Industries Ltd v Mylan Pharmaceuticals ULC
Counsel to Mylan in a NOC proceeding relating to a composition of matter patent over COPAXONE® (glatiramer acetate – a random polypeptide); this was the first and only Canadian generic challenge to COPAXONE®. Teva and Mylan also litigated in the U.S., U.K., Netherlands and elsewhere over this blockbuster product. Canadian proceeding settled before hearing. (Prior to joining Lenczner Slaght)
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Halliburton Energy Services Inc v BJ Services Company
Counsel to Halliburton Energy Services in patent infringement litigation regarding wellbore completion patented methods used in North American shale formations. McKool Smith and Gilbert’s formed a cross-border team, and the U.S. and Canadian actions were launched on same day. The proceedings were converted to an arbitration. (Prior to joining Lenczner Slaght)
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University of Toronto Faculty of Law - Adjunct Professor, Clinical Legal Education: Externship - Structural Genomics Consortium (2016 - present)
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Intellectual Property Institute of Canada - Conference Committee (2021-present); CPD Committee (2021-present)
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The Advocates’ Society
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Canadian Bar Association
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Ontario Bar Association
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Federal Court Refuses to Schedule a Summary Trial If No Significant Savings of Cost or Time
As part of our series on summary proceedings in IP cases, we previously commented on the Federal Court of Appeal’s guidance on when and how a court should determine if summary trial is appropriate. In this post, we consider Associate Judge Horne’s recent decision in Toronto-Dominion Bank v Dyas (“TD Bank”), which deals with when a Case Management Judge should schedule (or refuse to schedule) a summary trial.
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The recent decision in Munchkin Inc v Angelcare Canada Inc presents an example of circumstances in which foreign parent companies can be held liable for patent infringement in Canada.
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Who Owns This Patent? The FCA Says It’s as Clear as Mud
In its recent decision, Mud Engineering Inc v Secure Energy Services Inc, a divided Federal Court of Appeal considered the effect of the parties’ failure to prove ownership in the context of a summary trial. Though both the majority and the dissenting opinions agreed that the Patent Act creates a rebuttable presumption of ownership, they differed on which party should bear the burden of proving ownership once that presumption has been successfully rebutted and on the effect of that rebuttal on the underlying infringement action.
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Summary Judgment Still Appropriate for Certain Patent Infringement Claims
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 Federal Court of Appeal’s decision in Steelhead v ARC upholds Justice Manson’s summary trial decision finding no infringement by ARC Resources of Steelhead’s 085 Patent. In summary, the FCA held that the marketing of an apparatus that – if built – would infringe the 085 Patent did not constitute “use” (or “exploiter” in the French version) under section 42 of the Patent Act, and therefore could not be infringement.
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Policing Scope Creep: Relevance in Canadian Pharma Disputes for Section 8 Damages
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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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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Andrew Moeser will be sharing his expertise on patent enforcement at the joint Intellectual Property Institute of Canada and McGill University Summer IP Course. Andrew will lead a discussion on Patent Enforement: Infringement, as well as participate on a Mock Trial focused on Expert Reports and Cross-Examination of a Witness.
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Insights on the Independence of Expert Evidence
In the recently released decision dTechs EPM Ltd v British Columbia Hydro and Power Authority and Awesense Wireless Inc, the Federal Court of Appeal (“FCA”) weighed in on the role and independence of experts in patent cases. In particular, the FCA provided guidance on (1) the role counsel may play in preparing expert reports; (2) an expert’s role in claim construction; and (3) the difference in the role of an expert where anticipation is alleged based on prior use versus prior publication.
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Shocking Result? Summary Trial on Battery Jump Starter Patent Fails to Get Going
Patent infringement cases are complex and technical, and historically Canadian courts were reluctant to endorse summary disposition in the patent context. However, in recent years there has been an increased trend towards the application of summary proceedings in this area. In particular, we have previously commented on decisions of the Federal Court (“FC”) (Canmar, Kobold, and Janssen) and Federal Court of Appeal (“FCA”) (Canmar and ViiV) that demonstrate the Court’s willingness to approve summary proceedings in patent cases under the appropriate circumstances. Last fall, the FCA decision in Gemak was interpreted by some commentators as a return to the historical position, but in our view, Gemak can be viewed as tapping the brakes on summary judgment rather than signalling a more sweeping reversal of the trend towards summary adjudication.
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Lenczner Slaght Litigators Recognized as the Best Lawyers in Canada
In the 2025 edition of Best Lawyers in Canada, Lenczner Slaght is proud to receive 168 total rankings, with 45 of our expert litigators recognized for their expertise across 25 practice areas.
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IAM Patent 1000 Recognizes Lenczner Slaght’s Expert IP Team
Lenczner Slaght continues to receive worldwide recognition for its intellectual property expertise and is proud to advance to the Silver Tier in the 2024 edition of IAM Patent 1000: The World’s Leading Patent Professionals.
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Lenczner Slaght Stands Out as a Top-Tier Litigation Firm in Legal 500 Canada
Canada’s leading litigation firm is once again recognized as a “litigation powerhouse” according to Legal 500 Canada.
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Lenczner Slaght Receives Worldwide Recognition in IP Litigation
Canada’s leading litigation firm continues to be recognized year-over-year for its exceptional Intellectual Property expertise.
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Lexpert's Top 10 Business Decisions of 2021/2022
In Lexpert's Top 10 Business Decisions of 2021/2022, Lenczner Slaght is featured for its involvement in Li v Barber and Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association. Monique Jilesen was further interviewed on our involvement in Li v Barber, where our team successfully obtained a precedent-setting Mareva order.
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Lenczner Slaght Stands Out as a “Litigation Powerhouse” in Legal 500 Canada
Canada’s leading litigation firm is once again ranked in Tier 1 for Dispute Resolution by Legal 500 Canada.
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Lenczner Slaght’s Expert IP Team Receives Worldwide Recognition
Canada’s leading litigation firm continues to be recognized for its exceptional Intellectual Property expertise by IAM Patent 1000.
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Legal 500 Highlights Lenczner Slaght’s Litigation Dominance
Legal 500 recognizes Canada’s leading litigation firm as “a regular fixture in the country’s ground-breaking contentious cases”.
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Lenczner Slaght Welcomes New IP Partner
Canada’s leading litigation firm adds Andrew Moeser to its formidable Intellectual Property team.
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13th Annual University of Toronto Patent Colloquium
Andrew Moeser was invited to share his expertise at the University of Toronto’s annual Patent Colloquium. Andrew will present on the panel titled, Ambiguity and Indefiniteness.
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Patent and Trademark Case Law Review Series
Andrew Moeser was invited to present at the Intellectual Property Institute of Canada’s Patent and Trademark Case Law Review Series. Andrew discussed leading court decisions on core trademark issues, related to “Section 45”.
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Andrew Moeser was at the IPIC2023 Conference in Winnipeg. Andrew led a panel discussion on "Natural Selection and the Origin of the Species Patent: Are Selection Patents Evolving or Dying Out?".
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A 360 Review of the Amended PMNOC Regulations
Andrew Moeser was invited to present at the Intellectual Property Institute of Canada's program on A 360 Review of the Amended PMNOC Regulations. Andrew shared his expertise on various issues that arose as a result of the significant amendments introduced to the PMNOC Regulations (implemented on September 21, 2017), how such amendments were addressed in practice, as well as how the Court interpreted the PMNOC Regulations in procedural matters.
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Our expert IP litigators, Sana Halwani and Andrew Moeser, were invited to speak at IPIC's Annual Conference.
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IP Culture Shift: The Rise of Summary Disposition
Andrew Moeser authored the Lexpert article "IP Culture Shift: The Rise of Summary Disposition". In this article, Andrew comments on the shift towards summary disposition in Canadian IP litigation.
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Commissioned by the Federal Government (Innovation, Science and Economic Development Canada), Andrew Moeser prepared a report on strategies to integrate and exploit intellectual property for idea-based enterprises.
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A trust approach for sharing research reagents
Andrew Moeser co-authored the article “A trust approach for sharing research reagents”, which was published in Science Translational Medicine: Volume 9, Issue 392.
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Patents and Pills: Linkage, Litigation and Generic Drug Approval
Andrew Moeser lectured at the Faculty of Law, University of Toronto, Pharmaceutical Governance Course.
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Canada: Modernisation and Flux
Andrew Moeser co-authored the article Canada: Modernisation and Flux, which was published in IAM Magazine – IP Value: 2013. The article provided a review of Canada's IP regime, with discussions of the 2012 Copyright legislative reform and Supreme Court decisions, nontraditional Trademarks updates, Canada's unique sound prediction disclosure requirement, and the role of IP in Canada's trade talks.
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Benchmark Canada (2024)
Future Star
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Best Lawyers in Canada (2025)
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IAM Patent 1000 (2022-2024)
Patent Litigation: Recommended Individual (Silver)
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The Legal 500 Canada (2022-2024)
Intellectual Property (Recommended Lawyer)