Fiona Legere

The appellant generic manufacturer challenged the validity of a patent claiming dosing regimens for a long-acting injectable antipsychotic on the basis that the claims were impermissible methods of medical treatment.

The majority held that methods of medical treatment remain unpatentable subject matter under s. 2 of the Patent Act because professional medical skill and judgment are not proper subject matter for a patent, notwithstanding the repeal of former s. 41(1).

It further held that the proper inquiry is whether the claimed invention fences in professional medical skill and judgment, assessed purposively and with substance over form.

Applying that test, the dosing regimens were patentable because, once the physician selected the regimen, implementation did not require individualized clinical judgment of the kind the doctrine protects.

The appeal was dismissed without costs, although two judges would have held that methods of medical treatment are not inherently unpatentable.

Merck sought to impeach Wyeth's composition and formulation patents relating to the Prevnar 13 pneumococcal conjugate vaccine.

The Court found that the composition patent claims were valid but limited to 13 serotypes, as the invention was neither anticipated nor obvious given the complexities of conjugation and immune interference.

However, the Court invalidated the formulation patents, finding that the use of surfactants, buffers, and aluminum salts to stabilize formulations in siliconized containers was obvious in light of prior art, and the specific 13-valent claims were invalid for obviousness-type double patenting.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages, alleging they were falsely implicated in a state-sponsored doping scheme and wrongfully excluded from the 2016 Rio Olympic Games.

The defendants moved for summary judgment to dismiss the action on the grounds that the Court of Arbitration for Sport (CAS) had exclusive jurisdiction and that the action was an abuse of process.

The Superior Court of Justice granted the motion, finding that the essential character of the dispute fell within the broad arbitration clauses of the Olympic Charter and the athletes' entry forms.

The court also held that the action was an abuse of process as the plaintiffs were attempting to re-litigate a dispute they had already brought before the CAS.

The appellant appealed his summary conviction for two counts of criminal harassment, arguing that the trial judge applied uneven scrutiny to the evidence by placing a higher burden on his testimony than on the complainant's.

The Superior Court of Justice reviewed the trial judge's reasons, which relied on the W.(D.) and J.J.R.D. frameworks for assessing credibility and reasonable doubt.

The court found that the trial judge properly instructed herself, gave considered reasons for accepting the complainant's evidence, and did not engage in uneven scrutiny.

The appeal was dismissed.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

Innovator pharmaceutical companies brought a motion for partial summary judgment seeking dismissal of a generic manufacturer’s claim for disgorgement of revenues or profits based on unjust enrichment.

The claim arose from alleged wrongful invocation of the Patented Medicines (Notice of Compliance) Regulations, which had delayed the generic manufacturer’s market entry for a drug containing lansoprazole.

The court held that s. 8 of the NOC Regulations constitutes a complete statutory code governing compensation for delayed market entry and excludes equitable remedies such as disgorgement of innovators’ profits.

The Federal Court of Appeal’s decision in Apotex v. Eli Lilly Canada Inc. was followed as highly persuasive authority confirming that Parliament deliberately excluded profit disgorgement through the 2006 amendments to the Regulations.

In any event, the statutory framework and the parties’ settlement agreement each constituted juristic reasons defeating the unjust enrichment claim.