Sandon Shogilev

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.

The defendants in a patent infringement action sought to compel answers to discovery questions asking for the plaintiffs' "position" on issues raised in the pleadings, such as patent construction and inventive steps.

The plaintiffs objected on the basis that the questions improperly sought opinions or particulars of pleadings.

The Federal Court upheld most of the objections, reaffirming that discovery is limited to eliciting facts, and that questions seeking expert or legal opinions should be pursued by requests for particulars.

The Court allowed AstraZeneca’s appeal and held the patent ‘promise doctrine’ is not the correct approach to utility under s. 2 of the Patent Act.

It found the doctrine improperly imports disclosure obligations into the utility requirement and wrongly invalidates patents when one of multiple promised uses is unproven.

The correct test asks whether the claimed subject-matter has at least one practical use related to that subject-matter, demonstrated or soundly predicted at filing.

Applying that test, the ‘653 patent had sufficient utility and was not invalid.

The defendant, Apotex, brought a motion to strike portions of the plaintiffs' statement of claim and response to a demand for particulars.

The underlying action alleged that Apotex breached a settlement agreement and a duty of good faith by selling an extraordinary volume of a generic drug during a six-month market withdrawal period.

Apotex argued that one of the plaintiffs was an improper party and that the claim for breach of good faith had no reasonable prospect of success.

The court dismissed the motion, finding it was not plain and obvious that the claims would fail, noting that the law on the duty of good faith in contract performance is still developing.

The Court considered whether farming losses were fully deductible where a taxpayer's law practice and horse-racing farming business together formed a chief source of income under s. 31(1) of the Income Tax Act.

It held that prior precedent had improperly narrowed the statutory combination test, overruled that aspect of Moldowan, and confirmed a contextual approach examining capital, income, time, and the taxpayer's mode of living.

Applying that approach, the Court found no basis to disturb the trial findings that the taxpayer significantly emphasized both activities, so the farm-loss limitation did not apply.

The Crown's appeal was dismissed with costs.

The appellant commenced an action alleging the respondents conspired to falsely accuse him of fraud, while criminal proceedings against him for that fraud were ongoing.

The motion judge struck the claim, characterizing it as malicious prosecution lacking the essential element of a favourable determination in the criminal proceedings.

The Court of Appeal upheld the decision, finding that even if framed as conspiracy to injure, the claim could not proceed in the face of ongoing criminal proceedings.

The appeal was dismissed and the claim struck in its entirety.