Wednesday, April 2, 2014

Deferential Standard of Review of Re-examination Board

Newco Tank Corp v Canada (Attorney General) 2014 FC 287 Mosley J

In Newco Tank the patentee unsuccessfully appealed a decision of a Re-examination Board cancelling three of the claims of the ‘384 patent as being invalid for obviousness [1]. The patentee raised a number of points which complained, in effect, that the Board had applied the obviousness test too stringently. The main points illustrated by Newco are that Canadian courts continue to apply “an expansive and flexible approach to an obviousness inquiry rather than an overly rigid rule” [27], citing Sanofi 2008 SCC 61, [61]-[63], and that a deferential “reasonableness” standard of review will be applied to decision by the Board on questions of mixed fact and law, such as the application of the test for obviousness to the facts [22].

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