tag:blogger.com,1999:blog-1454051731189268002.post1232583275992659910..comments2024-03-27T11:29:23.559-03:00Comments on Sufficient Description: Disclosure Is the Quid Pro QuoUnknownnoreply@blogger.comBlogger5125tag:blogger.com,1999:blog-1454051731189268002.post-45229794098755747752012-11-14T14:45:04.674-04:002012-11-14T14:45:04.674-04:00That seems like a good interpretation. Thanks. It ...That seems like a good interpretation. Thanks. It will be interesting to see how this is treated if there is a corresponding infringement action.Anonymoushttps://www.blogger.com/profile/09419813272551065230noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-3135421851026287702012-11-14T14:38:18.366-04:002012-11-14T14:38:18.366-04:00I understand. I had completely missed that point. ...I understand. I had completely missed that point. The only statement that the patent is void is in the final sentence “I would therefore allow the appeal with costs and hold that Patent 2,163,446 is void” [91]. I think this must be interpreted as meaning “invalid for the purposes of this proceeding.” The rule that validity in NOC proceedings is not in rem was not in issue – it was not even mentioned at any level – and I don’t think the SCC can be taken to have overturned such a well-established rule without any discussion at all. Note that the courts below routinely referred to the question being whether the patent is “invalid.” They do not explicitly say that the invalidity is effective only for the purposes of this proceeding, but it is clear that this is what they meant, since the FC and FCA are well aware of their on jurisprudence on this point. In its substantive reasoning, the SCC at [83] concludes that the patent is “invalid” and here I think the SCC was using the term in the same way as the courts below. I think that in the concluding sentence the SCC was using “void” as a synonym for “invalid” without appreciating that there might be any substantive difference. The appellants in their factum did not request a declaration of invalidity, but only that "this appeal be allowed" with costs.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-3669008941665062342012-11-14T14:11:56.786-04:002012-11-14T14:11:56.786-04:00I believe that any of the following are good examp...I believe that any of the following are good examples:<br /><br />Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare), [1994] F.C.J. No. 662 at paras. 25-26, 55 C.P.R. (3d) 302 (C.A.) (QL), Hugessen J.A., leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 330; Wyeth Canada v. Ratiopharm Inc. (2007), 60 C.P.R. (4th) 375 at para. 21, 2007 FCA 264, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 572; SmithKline Beecham Pharma Inc. v. Apotex Inc., [2003] 1 F.C. 118 at para. 23, 2002 FCA 216, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 324; Pfizer Canada Inc. v. Apotex Inc. (2001), 11 C.P.R. (4th) 245 at para. 17 (F.C.A.), leave to appeal to S.C.C refused, [2001] S.C.C.A. No. 111; Eli Lilly Canada Inc. v. Novopharm Ltd. (2007), 62 C.P.R. (4th) 161 at paras. 40-41, 2007 FCA 359, leave to appeal to S.C.C. requested, [2008] S.C.C.A. No. 9.Anonymoushttps://www.blogger.com/profile/09419813272551065230noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-38218746822310567902012-11-14T13:56:19.905-04:002012-11-14T13:56:19.905-04:00Could you give me an example of a particular FCA d...Could you give me an example of a particular FCA decision which is called into question? This is not to dispute your assertion, but I can give more thought to it in the context of a particular example.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-1454051731189268002.post-38760813492077679572012-11-14T13:44:41.202-04:002012-11-14T13:44:41.202-04:00What is your take on the fact that the SCC voided ...What is your take on the fact that the SCC voided the patent? This seems to at least partly overturn multiple FCA decisions related to assessing validity in PMNOC cases.Anonymoushttps://www.blogger.com/profile/09419813272551065230noreply@blogger.com