David Watson

Novopharm held a compulsory licence for the patented medicine nizatidine, owned by Eli Lilly.

Novopharm and Apotex entered into a supply agreement whereby Novopharm would obtain the medicine and supply it to Apotex.

Eli Lilly sought to terminate Novopharm's licence, arguing the agreement constituted an impermissible sublicence, and sought prohibition orders against the issuance of Notices of Compliance to both Novopharm and Apotex.

The Supreme Court of Canada held that the supply agreement did not constitute a sublicence, as it did not grant Apotex the independent right to exercise Novopharm's licensed rights.

The Court also held that Apotex's proposed reformulation of the bulk medicine into final-dosage form would not infringe Eli Lilly's patents.

The appeals by Novopharm and Apotex were allowed.

The appellant sought a patent for a new soybean variety developed through artificial cross-breeding.

The Commissioner of Patents and the Federal Court of Appeal rejected the application.

On appeal to the Supreme Court of Canada, the Court held that the appellant failed to meet the disclosure requirements under s. 36(1) of the Patent Act.

The specification did not adequately describe the steps involved in the cross-breeding process to allow a person skilled in the art to reproduce the invention.

The Court further held that merely depositing a sample of the seeds did not satisfy the statutory disclosure requirement.

The appeal was dismissed.

The appellants infringed a patent held by Congoleum, who had granted a non-exclusive licence to the respondent Domco.

The appellants settled with Congoleum but not with Domco.

The Supreme Court of Canada held that a non-exclusive licensee is a 'person claiming under' the patentee within the meaning of s. 57(1) of the Patent Act.

Therefore, the licensee has a statutory right of action for damages sustained by reason of the infringement, which the patentee cannot extinguish by settling with the infringer.