Patrick Smith

The plaintiff, an elderly man in long-term care, brought an urgent motion to remove Notices of Security Interest (NOSIs) registered on his property's title by the defendants, who are alleged to be involved in a door-to-door HVAC and financing scheme.

The property was sold under mortgage enforcement proceedings and the sale could not close with the NOSIs on title.

The defendants did not respond to the motion.

The court ordered the NOSIs removed upon the plaintiff's undertaking to hold sufficient funds in trust, validated service, ordered the defendants to produce the underlying security agreements within 15 days, and appointed the plaintiff's daughter as his litigation guardian.

This is an assessment of costs following a judgment dismissing the plaintiff's action and motion for summary trial.

The defendants claimed costs at the highest end of Column III of Tariff B, arguing the complexity of the patent proceeding justified elevated costs.

The plaintiff did not file responding materials.

The Assessment Officer allowed most of the requested units but reduced the units for case management conferences and disallowed claims for second counsel fees and travel expenses, noting the lack of a specific court direction for those items.

The final assessed amount was $119,628.28.

The Defendant, NCS Multistage Inc., appealed an order of Associate Judge Ring which allowed the Plaintiffs, Kobold Corporation et al., to amend their Statement of Claim to include patent infringement allegations against the Defendant's "Mongoose" product.

The Defendant argued that these claims were barred by a prior summary judgment decision.

The Federal Court allowed the appeal in part, finding that the prior summary judgment applied to both the 2012 and 2018 iterations of the Mongoose device, and granted the motion with respect to the amendment relating to the Mongoose device only.

The parties subsequently agreed to a Second Amended Statement of Claim.

Following the dismissal of the Defendant's motion to file reply expert evidence, the Plaintiffs sought a lump sum costs award of $7,500 payable forthwith.

The Court declined to award a lump sum because the Plaintiffs failed to provide a bill of costs or any evidence of actual costs incurred.

The Court also found it inappropriate to order costs payable forthwith as the original motion was not one that ought not to have been brought.

Costs were awarded to the Plaintiffs in any event of the cause to be taxed at the upper end of Column V of Tariff B.

Guest Tek Interactive Entertainment Ltd. sued Nomadix, Inc. for patent infringement, alleging Nomadix infringed or induced infringement of two patents relating to wireless network security (the '760 Patent) and bandwidth management (the '345 Patent).

Nomadix denied infringement and counterclaimed that the patents were invalid for anticipation and obviousness.

The Federal Court construed the disputed claims and found that Nomadix's gateway devices and software did not infringe the asserted claims of either patent.

The Court also found that Nomadix had not shown the patents were invalid.

Both the action and counterclaim were dismissed.

This decision deals with the quantum of costs awarded to the defendant following a patent infringement action where the defendant was successful in defending against infringement.

The defendant sought lump sum costs and relied on an offer to settle.

The court found the offer to settle non-compliant with Rule 420 as it was not made 14 days before trial.

The court also found the defendant's conduct during the litigation unnecessarily expanded the proceeding.

Costs were awarded at the middle range of Column III, and the defendant's primary expert fees were capped at two-thirds of the billed amount.

The plaintiff brought an action alleging the defendant infringed claims 1 to 8 of a patent relating to a modularized well pad system for heavy oil production.

The defendant counterclaimed that the patent was invalid for obviousness.

The Federal Court construed the claims and found that the defendant's well pads did not infringe because they lacked the essential element of having a plurality of flow lines on a first, lower level.

The court dismissed the defendant's obviousness attack, finding that the placement of the steam injection flow line on the lower level would not have been obvious to a skilled person.

This endorsement addresses a refusals motion where the defendants, Eli Lilly, sought to question the plaintiff, Apotex, regarding communications with the government during Apotex's abbreviated new drug submission (ANDS) process.

Apotex argued that its drug approval process was immune from challenge by Lilly.

The court distinguished between an impermissible collateral attack on Health Canada's regulatory approval and a permissible inquiry into factors that might affect the "start date" for damages under s. 8(1)(a)(ii) of the Patented Medicines (Notice of Compliance) Regulations.

The court found Lilly's request to be probative of a properly pleaded issue concerning the quantum of damages, rather than the validity of the approval itself.

Consequently, the motion was granted, and the question was ordered to be answered.

The applicant brought an application under Rule 14.05(3) seeking declarations concerning the ownership of patent applications related to a product developed under a Consulting Agreement.

The respondents brought a motion to stay the application, arguing that a different agreement with an Alberta forum selection clause applied, and that material facts were in dispute making the matter unsuitable for an application.

The court dismissed the motion to stay, finding it premature to determine whether the issues were suitable for an application or if the forum clause applied before the application record was complete, allowing the motion to be renewed at the hearing of the application.

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 appellants appealed a decision dismissing their motion to strike a portion of the respondent's amended claim seeking disgorgement of profits based on unjust enrichment.

The respondent, a generic drug manufacturer, argued it had an independent cause of action outside the Patented Medicines (Notice of Compliance) Regulations due to the invalidity of the appellants' patent and alleged false representations.

The Divisional Court allowed the appeal, holding that the Patent Regulations constitute a complete code and leave no room for stand-alone equitable remedies like unjust enrichment in these circumstances.

The claim was struck for disclosing no reasonable cause of action.

The defendants moved to strike parts of the plaintiff's statement of claim, which sought damages for the delay in marketing its generic drug caused by the defendants' actions under the Patented Medicines (Notice of Compliance) Regulations.

The plaintiff claimed damages under s. 8 of the Regulations, unjust enrichment, and the Trade-marks Act after the defendants' patent was declared invalid.

The court dismissed the motion to strike these claims, finding they had a reasonable prospect of success and raised unsettled legal questions, but struck a bald claim for remedies 'otherwise available at law'.

The appellant developed a cancer-fighting drug containing paclitaxel, a medicine in the public domain.

The respondent held patents for specific formulations and uses of paclitaxel.

The appellant applied for a Notice of Compliance (NOC) as a new drug, not relying on the respondent's data.

The Minister issued the NOC.

The respondent sought to quash the NOC, arguing that under s. 5(1.1) of the Patented Medicines (Notice of Compliance) Regulations, the mere presence of paclitaxel triggered a statutory freeze.

The Supreme Court of Canada held that s. 5(1.1) does not apply to innovative drugs but is confined to generic copies.

The Minister was entitled to issue the NOC without subjecting the appellant to the statutory freeze.