Markwell Clarizio LLP

Author name: David Park

Federal Court Finds Flaws in Online Survey Evidence and Reminds About Descriptive Certification Marks

The Federal Court (Tsimberis J.) dismissed an appeal by Promotion in Motion, Inc. (“PIM”) from a Trademark Opposition Board (“Board”) decision refusing PIM’s applications to register its SWISSKISS mark and SWISSKISS & Design mark in association with “chocolate of Swiss origin”. Hershey Chocolate & Confectionary LLC (“Hershey”) successfully opposed PIM’s applications based on Hershey’s registered […]

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Federal Court Determines Admissibility of Testimony from Fact Witnesses who Authored Prior Art

In Medexus Pharmaceuticals v Accord Healthcare (2024 FC 424), Justice Pallotta dismissed the plaintiffs’ (“Medexus”) patent infringement action after finding that the patent at issue (“662 Patent”) was invalid for obviousness. The 662 Patent related to concentrations of subcutaneously injected methotrexate solutions used to treat rheumatoid arthritis and psoriasis/psoriatic arthritis. The decision addresses an interesting

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Generic Manufacturers Induce Patent Infringement by Recommending Use of a Patented Dosing Regimen in their Product Monographs

In Apotex v Janssen (2024 FCA 9) and Pharmascience v Janssen (2024 FCA 10), the Federal Court of Appeal held that Apotex and Pharmascience would induce patent infringement by recommending that their respective generic products be sold and used according to the dosing regimen claimed in Janssen’s 335 Patent. Apotex Inc. v. Janssen Inc. –

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Federal Court Determines the Inventive Concept of an Improved Drug Formulation

In this Federal Court decision (per Pentney J.), the plaintiffs Allergan and AbbVie (“Allergan”) were successful in upholding the validity of their 691 Patent. The defendant (“Juno”) conceded that its proposed generic drug product would infringe the 691 Patent. The main issues before the Court were obviousness and sufficiency. Allergan v Juno, 2023 FC 1686

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Three Interesting Issues Raised in the NCS/Kobold Patent Action – Part III

Co-written with Dino Clarizio This is the third of a series of three posts discussing some of the issues addressed by the trial judge (McVeigh J.) in NCS v Kobold, 2023 FC 1486. The three issues we discuss are those that arise less frequently in patent cases. They are: Topic 1: Priority Date (Post #1)Topic

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Three Interesting Issues Raised in the NCS/Kobold Patent Action – Part II

Co-written with Dino Clarizio This is the second of a series of three posts discussing some of the issues addressed by the trial judge (McVeigh J.) in NCS v Kobold, 2023 FC 1486. The three issues we discuss are those that arise less frequently in patent cases. They are: Topic 1: Priority Dates (Post #1)Topic

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Three Interesting Issues Raised in the NCS/Kobold Patent Action – Part I

Co-written with Dino Clarizio In a complex patent infringement action involving five NCS patents and one Kobold patent relating to tools and sleeves used in oil well drilling, the Federal Court (per McVeigh J.) held that NCS’s patents were invalid and not infringed, and that Kobold’s patent was valid and infringed by NCS. As a

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Angelcare v Munchkin: Entitlement to Infringement Remedies

Co-written with Dino Clarizio The Federal Court of Canada (per Roy J.) decided four issues of entitlement to remedies in an action where he had previously held that the defendants’ products sold in Canada infringed valid claims. The issues were 1) entitlement to injunctive relief; 2) entitlement to an accounting of profits; 3) entitlement to

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