Prohibition Dismissed On The Basis Of Non-Infringement (Intellectual Property Weekly Abstracts - Week Of December 19, 2016)

PATENT DECISIONS

Prohibition dismissed on the basis of non-infringement

Meda AB v. Canada (Health), 2016 FC 1362

The Court dismissed a prohibition application, which would have prevented Pharmascience from coming to market with its PMS-Zolpidem until the '988 Patent expired. The Court held that Pharmascience's allegation of non-infringement was justified. Given this finding, the Court did not need to consider the alleged Gillette defence.

Concerning the patent's validity, the Court found that only Pharmascience's allegation of overbreadth in relation to claim 1 was justified. The Court found that Pharmascience's other allegations of invalidity, including anticipation, obviousness and inutility, were not justified.

The Court dismissed the Applicants' request for an order striking two of Pharmascience's expert affidavits, on the basis that counsel obstructed the cross-examinations of these affiants to the extent that the conduct was abusive and frustrated the process such that their evidence should be rejected. While the interruptions and objections by counsel for Pharmascience were not always necessary or useful, the Court concluded that they were not abusive.

The Court also dismissed the Applicants' challenge that Pharmascience's evidence listed in Schedule "A" was improper on the basis that the evidence exceeds the facts alleged in the NOA.

TRADEMARK & COPYRIGHT DECISIONS

Child playground structures were not found to have a distinguishing guise and copyright did not apply after the 51st worldwide sale

Corocord Raumnetz GMBH v. Dynamo Industries Inc., 2016 FC 1369

The Federal Court has dismissed a series of trademark and copyright claims relating to child playground structures.

The plaintiff Corocord makes and sells playground equipment, and alleged that Dynamo "imitated, copied and reverse engineered" their designs, then sold them in direct competition to Corocord.

Corocord alleged they had rights in the distinguishing guise of the design, that Dynamo made false and misleading statements and that they also directed attention to its wares in such a way that it would cause confusion between the playground structures. Corocord also alleged their copyright had been infringed. Corocord did not have any rights under the Industrial Designs Act.

The Court found that Corocord did not provide any evidence that the relevant market had begun to recognize the share of their play structures as coming from a single source. The evidence also did not...