Year-End Round-Up: Notable Canadian Patent Cases Of 2018

Earlier this month we published an exhaustive review of the life sciences and regulatory cases in the Canadian courts, and decisions on the merits for the year are summarized in our in our Rx IP Update 2018 Highlights in Canadian Life Sciences IP.

In this update, we note the following additional patent decisions by the Canadian courts in 2018, the first of which concerns a relatively rare interlocutory injunction. The others are decisions on the merits.

Thermolec ltée c. Stelpro Design Inc., 2018 QCCS 901

An interlocutory injunction was granted restraining Stelpro from selling products that allegedly infringed Thermolec's patent 2,242,829 relating to an electric air heating system. Justice Déziel held that there was a serious issue at hand, namely infringement, and Thermolec would suffer irreparable harm if the injunction was not granted, in the form of loss of goodwill and loss of distributors. The balance of convenience favoured Thermolec, since the patented products represented at least 30% of its business compared to less than 5% of Stelpro's.

Georgetown Rail Equipment Company v Rail Radar Inc. and Tetra Tech EBA Inc., 2018 FC 70

Georgetown claimed that Tetra Tech infringed its patents 2,572,082 and 2,766,249 relating to an automated system and method for inspecting railroad track. Tetra defended on the basis of obviousness. Justice Fothergill found that Georgetown's patents were valid and infringed. The decision is under appeal (A-69-18).

Regents of the University of California v I-MED Pharma Inc., 2018 FC 164

TearLab, a sublicensee of patent 2,494,540 owned by the University of California, claimed that I-MED Pharma infringed the patent, which relates to measuring the osmolarity of a sample of a bodily fluid, including particularly tear film, whereby the sample fluid is deposited on a chip. I-MED Pharma invoked the Gillette Defence (i.e. the defendant is practicing the prior art) in asserting non-infringement and invalidity. Justice Manson held that the asserted claims were infringed, but invalid for being anticipated and obvious. The decision is under appeal (A-86-18).

MIPS AB v Bauer Hockey Ltd., 2018 FC 485

MIPS claimed that Bauer infringed its patent 2,798,542 relating to rotational energy-absorbing sports helmets for minimizing brain injury, and sought to have Bauer's patent 2,784,316 and its divisional patents 2,821,540, 2,838,103 and 2,847,669 declared invalid. Bauer denied infringement and attacked the validity of MIPS's patent...