Intellectual Property Law - OCA

The appellant challenged only the monetary component of a summary judgment finding of copyright infringement, arguing that the profits award failed to account for expenses such as labour, taxes, and rent.

The court held that under s. 35(2) of the Copyright Act, the defendant bore the onus of proving any deductions from revenues earned through infringing sales.

Because no evidentiary foundation was provided for the claimed expenses before the motion judge, and further calculations were advanced for the first time on appeal, there was no basis for appellate intervention.

The appeal was dismissed and appeal costs were fixed at $5,000 inclusive.

The appellant employer appealed a trial judgment that dismissed its copyright claim under s. 13(3) of the Copyright Act over competing software secretly developed by a former employee.

The trial judge found the software was not created "in the course of employment" because the employee's actual responsibilities were limited to developing the employer's existing software, he was not directed to create new products, and the employer did not expend resources on the competing software's development.

The Court of Appeal upheld the decision, holding that the proper test under s. 13(3) focuses on the employee's actual assigned responsibilities, not the class of work the employer could have directed, and found no palpable and overriding error in the trial judge's factual findings.

The Court of Appeal for Ontario dismissed Apotex Inc.'s appeal regarding its claim for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations.

Apotex sought damages for delayed market entry of its generic drug due to Eli Lilly's prohibition application.

The trial judge found that Apotex was not entitled to damages, as the prohibition application was dismissed as moot, not on the merits, and that Apotex would not have entered the market earlier in a hypothetical world without the prohibition application due to risk aversion and potential patent infringement liability.

The Court of Appeal upheld these findings, concluding that Apotex failed to demonstrate any actual entitlement to damages.

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

The appellants, generic drug manufacturers, sought damages exceeding one billion dollars against the respondents, innovator drug companies, after the respondents' patent for the drug Olanzapine was declared invalid.

The appellants claimed damages under the Statute of Monopolies, the Trademarks Act, and the common law tort of civil conspiracy for the period they were kept out of the market.

The Court of Appeal upheld the motion judge's dismissal of the action, finding that the Patent Act and the PM(NOC) Regulations provided a complete code for remedies, and the respondents were not liable for damages caused by the lawful operation of the statutory regime.

The court also upheld the motion judge's $700,000 partial indemnity costs award against the appellants.

This appeal concerned an insurer's duty to defend where the insurer alleged material misrepresentations and breach of policy conditions by the insured.

The insurer, Certain Underwriters at Lloyd's, London, denied defence to IT Haven Inc. and Ryan Hunt against a copyright infringement lawsuit, claiming the insured misrepresented their business operations in the insurance application.

The motion judge granted the duty to defend, refusing to consider extrinsic evidence.

The Court of Appeal dismissed the insurer's appeal, affirming the duty to defend.

The court applied a flexible approach, distinguishing this from a typical 'pleadings rule' case, and held that resolving the alleged misrepresentations would require determining contested factual issues central to the underlying litigation, which is inappropriate at the duty to defend stage.

The Court of Appeal for Ontario reversed a motion judge's decision that a debt arising from misappropriation of trade secrets would survive bankruptcy under s. 178(1)(e) of the Bankruptcy and Insolvency Act (BIA).

The motion judge erred by interpreting "false pretences" too broadly, including lying during discovery and generally morally objectionable conduct, rather than requiring a deceitful statement by which the debtor obtained property or services.

The Court clarified that s. 178(1)(e) requires a direct causal link between a deceitful statement and the obtaining of property/services.

The appeal was allowed, setting aside the declaration regarding s. 178(1)(e) and varying the stay of proceedings to allow quantification of claims for bankruptcy purposes and enforcement of injunctive relief, but not monetary judgments outside of bankruptcy.

The appellant appealed a summary judgment dismissing his $2,000,000 copyright infringement action against the respondent transit commission.

The appellant claimed copyright over transit route maps based on an unpublished U.S. copyright registration.

The Court of Appeal rejected the respondent's preliminary objection that the appeal belonged in the Divisional Court, noting the claim amount exceeded $50,000.

The Court upheld the motion judge's findings that there was no originality in the appellant's maps and no evidence the respondent used them, dismissing the appeal.

AgriMarine Holdings Inc. and AgriMarine Industries Inc. appealed a decision dismissing their application for a declaration that Akvatech AS was in breach of contract and not the holder of a license to fish-rearing technology.

The parties had entered into a Letter Agreement dated November 20, 2012, whereby Akvatech would acquire ownership and licensing rights to the technology for certain territories in exchange for a $200,000 pre-payment.

The transaction was not completed by the target closing date, and the parties terminated the agreement by mutual conduct.

Akvatech demanded repayment of the pre-payment amount, issued a default notice when not repaid, and exercised its right under the agreement to obtain a perpetual, irrevocable, exclusive license to the technology in the Northern Europe Territory.

The application judge found neither party was in breach, the agreement had been terminated by mutual consent, and Akvatech was entitled to the license.

The appellants argued the application judge erred in permitting Akvatech to take advantage of its own breach, that there was no default by AgriMarine, and that the license was unenforceable due to unlimited duration and no royalty provisions.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding errors of fact or reversible errors in contract interpretation.

The appellants (Sanofi-Aventis and Schering Corporation) appealed a motion judge's decision dismissing their motion to amend their statement of defence.

The appellants sought to plead that a 2009 Federal Court decision invalidating their patent for the drug Ramipril was based on wrong legal principles, specifically the "promise doctrine," which was subsequently struck down by the Supreme Court of Canada in 2017.

The motion judge had dismissed the motion on the basis of issue estoppel, finding no change in law justified departing from the doctrine.

The Court of Appeal allowed the appeal, holding that the Supreme Court's decision striking down the promise doctrine constituted a change in law that warranted exercising discretion not to apply issue estoppel, particularly given the centrality of the patent validity issue to the respondent's claim for damages.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

Appeal from a summary judgment decision enforcing settlement agreements between Mars Canada Inc. and the appellants regarding the sale of grey market Mars products in Canada.

The appellants challenged the enforceability of the settlement agreements as being in restraint of trade, the motion judge's jurisdiction to order a reference on damages, and the award of substantial indemnity costs.

The Court of Appeal upheld the motion judge's decision, finding the settlement agreements reasonable under the Tank Lining test, confirming the court's jurisdiction to order a reference under Rule 20.04(3) on summary judgment, and affirming the substantial indemnity costs award based on the appellants' reprehensible conduct.

A class action appeal concerning copyright ownership in plans of survey registered or deposited in Ontario's electronic land registry system (ELRS).

The appellant land surveyors claimed that Teranet Inc., which operated the ELRS, infringed their copyright by digitizing, storing, and copying their survey plans.

The motion judge granted summary judgment dismissing the action, finding that copyright in registered or deposited plans belonged to the Province of Ontario under section 12 of the Copyright Act.

The Court of Appeal affirmed this decision, holding that the provincial land registration scheme gave the Crown complete control over registered plans, and that the Crown's publication of those plans through the ELRS occurred under the Crown's direction or control, thereby vesting copyright in the Crown.

The appellant appealed a trial judgment dismissing its action for breach of a licensing agreement and patent infringement.

The trial judge found that the respondent's accused products did not infringe the appellant's U.S. patent for a self-ligating orthodontic bracket because the accused products' locking shutter moved primarily through rotation rather than the purely sliding motion required by the patent claims.

The Court of Appeal upheld the trial judgment, finding no error in the trial judge's construction of the patent claims within the context of the specification.

The court also upheld the costs award against the appellant.

The appellants appealed a motion judge's decision dismissing their limitations defence in an action brought by the respondent for improper use of confidential and proprietary information disclosed in 2002.

The respondent filed its action on September 9, 2011.

The motion judge found that the respondent's obligation to exercise due diligence was not triggered prior to April 2009, and that exposure to the appellants' affairs through a consultant's work was insufficient to constitute actual notice or trigger a duty to investigate.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding errors of fact or law, and affirmed that the respondent could not have discovered its claim until September 11, 2009, when exercising reasonable diligence.

The applicants sought leave to appeal a supervising judge's partial summary judgment dismissing their $86 million claim for disgorgement of profits against the debtor companies.

The claim arose from the unauthorized transfer of the applicants' software source code during the sale of the debtors' assets in CCAA proceedings.

The Court of Appeal denied leave, finding that the proposed appeal turned on factual findings regarding the lack of evidence that the debtors profited from the infringement, which were entitled to deference.

The court also noted the need to avoid further delay in the long-running insolvency proceedings.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

The appellant, author of a book, alleged that the respondents illegally reproduced and sold unauthorized copies of his work, claiming primary and secondary copyright infringement.

The respondents successfully moved for summary judgment, with the motion judge finding no evidence that they had published, handled, distributed, or offered for sale any infringing copies.

On appeal, the appellant argued the motion judge failed to apprehend key evidence and was biased.

The Court of Appeal dismissed the appeal, finding the motion judge's factual conclusions were supported by the evidence and that the hearing was fair and impartial.

Apotex's generic version of a patented drug was kept out of the market for two years by Eli Lilly using the Patented Medicines (Notice of Compliance) Regulations.

After the patent was invalidated, Apotex sued for unjust enrichment, seeking disgorgement of Eli Lilly's monopolistic profits.

The Court of Appeal upheld the Divisional Court's decision to strike the claim, finding that Apotex suffered no corresponding deprivation of the monopolistic profits because it would never have earned them.

The appellant, Teranet Inc., appealed a Divisional Court decision certifying a class action brought by the respondent land surveyor for copyright infringement.

The respondent alleged that the appellant's provision of electronic copies of land surveys to the public for a fee infringed the surveyors' copyright.

The Court of Appeal dismissed the appeal, finding that the Divisional Court did not err in allowing the respondent to revise its class definition and common issues on appeal, as the changes were not fundamental and did not prejudice the appellant.

The Court further upheld the certification, concluding that the revised class definition was not merits-based, the common issues would significantly advance the litigation, and the respondent was a suitable representative plaintiff despite not relying on the appellant's services.