You Can’t Plead Contributory Patent Infringement In Canada

Nycomed Canada Inc. et al v. Teva Canada Limited 2012 FCA 195 (F.C.A. per Noël J.A., Evans and Sharlow JJ. A., concurring)

In Nycomed v. Teva, the Federal Court of Appeal confirmed that there is no cause of action in Canada for "contributory infringement" of a patent and, accordingly, approved a decision that struck out parts of a Statement of Defence and Counterclaim that pleaded it.

The Court confirmed that the Supreme Court of Canada, in the Monsanto Canada Inc. v. Schmeiser decision (2004 SCC 34), did not indicate an intention to depart form the existing precedents to recognize "contributory infringement" as a cause of action under Canadian law. The Court affirmed the decision of Simpson J. in the Federal Court (2011 FC 1441) and agreed with her reasoning on the point at issue.