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ARTICLE · 09 OCTOBER 2019

The Flax And The Foreign: US Prosecution History In File Wrapper Estoppel

The court held that foreign prosecution history is admissible in extraordinary circumstances under this provision.

CanadaIntellectual Property

In Canmar Foods Ltd v TA Foods Ltd, the Federal Court interpreted the new file wrapper estoppel provision, s 53.1 of the Patent Act, for the first time (see IP monitor of November 2018). The court held that foreign prosecution history is admissible in extraordinary circumstances under this provision.

Background

The plaintiff, CanMar Foods Ltd., brought a patent infringement action against the defendant, TA Foods Ltd., regarding Canadian Patent No. 2,582,376 (the 376 Patent). Both parties are competitors in the flax seed product industry. The plaintiff's 376 Patent claims a particular method of roasting flax seeds, and the plaintiff alleged the defendant was producing its roasted flax seeds in a manner that infringed the 376 Patent.

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