In 2015, Canadian courts
and the Patent Appeal Board issued decisions which deemed
non-infringing alternatives to affect damages for patent
infringement, assessed a license agreement by reference to U.S.
patent law, and addressed invalidity for
obviousness.
These are our selections for
the most influential Canadian patent cases of 2015, outside
of life sciences:
Damages
In Apotex Inc. v. Merck
& Co., Inc., [2015 FCA 171], the Federal Court of
Appeal made a landmark decision which declared that damages for
patent infringement may be assessed with a view to the availability
of a non-infringing alternative. The FCA held that "[perfect
compensation] requires consideration of: (i) what, if any,
non-infringing product the defendant or any other competitors could
and would have sold 'but for' the infringement; and (ii)
the extent lawful competition would have reduced the patentee's
sales." Although the decision was made in the context of
pharmaceuticals, it is
