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In Canada, it has long been understood that when it comes to the
construction of claims in a patent litigation matter, only
information provided by the four corners of the
specification was admissible in the court proceeding. This
means that the claims were purposively construed with a mind
willing to understand and based on the teachings of the
description. More than 20 years ago, the highest court in Canada
affirmed that allowing extrinsic evidence, in the form of
admissions made during the prosecution of the Canadian patent
Canmar
5 was a
trend for a day or here to stay. This year, the Federal Court has
seen increased attempts by litigants to resolve matters more
expeditiously by way of dispositive motions. Summary judgment was
granted in three cases
6 and two
motions for default judgment were brought but dismissed based on
insufficient evidence.
ViiV Healthcare Company v. Gilead Sciences
Canada,
8 the Court held that
completion of discoveries is not a precondition to summary trial
such that resolution may be sought at very early stages of the
proceeding.
We saw the Federal Court grant summary disposition to (a)
dispose of claim construction argument,
On January 20, 2021, the Federal Court of Appeal dismissed the
appeal in
CanMar Foods Ltd. v. TA Foods Ltd 2021 FCA 7.
This precedent setting appeal stems from the underlying decision of
Justice Manson which itself was recognized as the Canadian Patent
Impact Case of the Year by Managing Intellectual Property (MIP)
Americas Awards 2020. Gowling WLG successfully represented TA
Foods both at trial and on appeal. Our earlier articles and
discussion on the trial decision are available here and here.
This appellate decision reiterates that summary judgment is a
viable, efficient and relatively inexpensive procedural route to
exit patent actions even before discovery where it is clear that