E. Mishan & Sons Inc. v. Supertek Canada Inc., 2015 FCA 163

The Federal Court of Appeal (FCA) dismissed an appeal from a trial decision finding the claims at issue in a patent infringement case to be invalid for obviousness (decision heresummary here).

The appellant argued that a particular document should not have been included in the prior art. In particular, the appellant argued that the fact that a document was found by a lawyer, should not lead to a conclusion that it would have been found by the skilled person. The FCA held that this issue was reviewable  as a finding of mixed fact and law, and would not be overturned without a palpable and overriding error. The FCA refused to reweigh evidence in this analysis, and the finding stood.

The FCA then considered the appeal in relation to obviousness. It held that it was not convinced that the Federal Court misapplied the fourth step of the Sanofitest. Furthermore, the FCA held that there was evidence to support the factual findings made by the trial judge in coming to his conclusion that the claims were obvious. Thus, the appeal was dismissed.