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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
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