Canadian Patent Litigation: Five Things To Watch In 2018

2017 was a significant year for Canadian patent law — one marked by the Supreme Court abolishing the so-called 'Promise Doctrine' of utility, as well as several other significant changes. Here's a look at five things to watch for in patent litigation in the coming year.

1. Promise Doctrine Abolished

On June 30, 2017, the Supreme Court of Canada, released a landmark patent decision AstraZeneca Canada Inc. v. Apotex Inc., 2017 SCC 36, abolishing Canada's so-called 'Promise Doctrine' (our commentary here). Under the Promise Doctrine, patents could be invalidated if various heightened utilities construed from the patent were not demonstrated or soundly predicted by the Canadian filing date. The new two-part test for assessing utility in Canada requires: (i) identifying the subject-matter of the invention as claimed in the patent, and (ii) determining whether that subject-matter is useful — is it capable of a practical purpose (i.e. an actual result) on a mere