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Patents The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
and
Beverley Moore
Cobalt said not to infringe Bayer's patent for
YASMIN®
Bayer Inc. v. Cobalt Pharmaceuticals Company, et al.
, 2013 FC 573
Bayer sought to prohibit the Minister of Health from issuing a
Notice of Compliance to Cobalt for a generic version of Bayer's
oral contraceptive YASMIN®. The application pursuant
to the PM(NOC) Regulations was unsuccessful as the court determined
that Cobalt would not infringe Bayer's process patent. As a
result of this finding, questions of invalidity were not dealt
with.
Claim 13, the only claim in issue in the 2,261,137 patent, was
construed to claim a three-step process for preparing the active
ingredient drospirenone, with a particular level of purity. In
light of this construction, Cobalt's process was found to avoid
a key reaction in the patented process, and accordingly did not
infringe.
Trade-marks
Monster Cable's opposition unsuccessful before the
Federal Court of Appeal
Monster Cable Products, Inc. v. Monster Daddy, LLC
, 2013 FCA 137
Monster Cable had opposed the application for the trade-mark
MONSTER by Monster Daddy based upon the proposed use of various
wares, but this was rejected by the Registrar for many of the
wares, and the Registrar's decision was
generally affirmed by the Federal Court.
The Court of Appeal considered the reasonableness standard of
review applied by the Federal Court Judge. Although Monster Cable
had filed new evidence on appeal, this evidence was found to be
insufficient to materially affect the Registrar's findings, and
therefore the review standard was properly based on reasonableness,
and not de novo. Finding the lower decision was reasonable, and no
palpable and overriding errors were made in assessing the evidence,
the appeal was dismissed.
Interlocutory injunction quashed by Saskatchewan's
Court of Appeal
Wildman v.
Kulyk, 2013
SKCA 55
Saskatchewan's Court of Appeal has quashed an interlocutory
injunction that had been awarded to restrain
the defendant from using the plaintiff's business name and/or
trademarks, Global Healthcare Connections, and forcing the
defendant to remove all references from her websites, Facebook page
and other social media sources.
This case involves a falling-out among former friends and business
partners and a dispute over who has the rights to use the name or a
close variation thereof. The Court of Appeal found that the
plaintiff was relying solely on the common law tort of passing off
to obtain the injunction, which requires evidence of goodwill.
However, the plaintiff did not put forward any evidence of
goodwill. The evidence showed the plaintiff had been completely
unable to establish a reliable presence on the internet due to the
alleged activities of the defendant. Therefore, it was unnecessary
to consider the other elements of the common law tort.
Consequently, the plaintiff failed to show a serious issue to be
tried or irreparable harm, and the balance of convenience fell in
favour of the defendant.