In Janssen Inc. v. Pharmascience Inc., 2022 FC 62, the
Federal Court highlighted two important issues: the burden in
summary trial proceedings and the evidentiary burden for proving
inducement of patent infringement. The Court's findings with
respect to these issues in Pharmascience differ from its
findings in two other recent decisions.1
The Court held that, once an issue is found to be suitable for
summary trial, the burden to prove that issue falls on the same
party who bears the onus in the underlying action. In other words,
the onus on summary trial is the same as at a full trial. On the
question of inducement, the Court inferred that Pharmascience would
induce infringement of the claimed dosing regimen through
recommendations in the product monograph, even though the monograph
did not explicitly identify the infringing step and the prescribing
physician would have a final say in the exact regime.
