2017 has been a banner year for IP litigation in Canada. A
series of recent cases, from big trials to precedent-setting
appeals before the Supreme Court, have garnered international
attention from IP owners. With these decisions, changes in law, and
improved court procedures for assisting litigants in getting to
trial efficiently and in obtaining interlocutory remedies more
quickly, Canada is proving to be an extremely attractive
jurisdiction for the protection and enforcement of intellectual
property rights.
Patents
In AstraZeneca v Apotex1, the Supreme Court
of Canada abolished the controversial "promise of the
patent" doctrine, under which patentees had to prove that the
claimed invention was useful for any "promised" uses
found in the specification. This judge-made doctrine had been
invoked to invalidate numerous patents over the past decade, and
even resulted in a trade dispute between Eli Lilly and Canada under
NAFTA's investor-state arbitration regime2.
