Patents

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.