Sunday, October 20, 2013

Québec government announces support for Québec SMEs in seeking their “First Patent”

By way of the Politique nationale de la recherche et de l’innovation (National Policy on Research and Innovation), the Québec government introduced a program named Premier brevet (First Patent) which is designed to offer financial and technical assistance to small businesses in seeking patent protection in Canada for innovations that may otherwise have gone unprotected. 

Preliminary descriptions of the program indicate that it may cover certain costs related to:

  • Prior art searches used to determine the state of the art and assess patentability of an innovation; 
  • Freedom to operate opinions; - Patent application filing fees in Canada and abroad;
  • Professional fees relating to drafting and prosecution of the patent application; 
  • Certain activities related to the use of the innovation once a patent issues. 

This is a very smart move by the Québec government seeking to encourage both foreign and local investment in Québec companies in order to stimulate the growth of its knowledge-based economy. When conducting their due diligence prior to making investments, one of the first things investors will typically want to see is proof that a company has taken steps to secure patent protection for the products, processes and systems used by that company. 

Oftentimes, the first filings by an SME are done on the cheap. The costs associated with drafting a complete and robust patent application are not insignificant, an SME often doesn’t have the resources to invest in such a drafting exercise. This can lead to complications down the road, and potentially the loss of patent rights if litigation arises. 

Help from the Québec government in offsetting the costs associated with drafting and filing patent applications will allow Québec SMEs to engage the help of professionals and as a result will result in more complete and robust patent applications. This will lead to better and stronger patent rights. And when an investor reviews such patent applications, they will likely appreciate the quality of a properly drafted patent application and may be more likely to lay down such investments. 

For more information (in French) see: 


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Friday, October 18, 2013

Teva Canada Limited v. Novartis Pharmaceuticals Canada Inc

The Federal Court of Appeal has affirmed Justices Hughes’ decision relating to the Order of prohibition issued in respect of Canadian Patent No. 1,338,937 (the ‘937 Patent) and Patent No. 1,338,895 (the ‘895 Patent). 

Teva in its appeal had argued that Justice Hughes had “[s]ubstituted a higher standard for determining obviousness” and had “[f]ailed to properly ascertain the state of the art and to identify the differences between the inventive concept and the state of the art as required by step 3 of the “Sanofi test” (See paragraph 3 of the FCA decision). 

The FCA disagreed with Teva on both points. 

Teva further alleged in its appeal that “the Judge misconstrued and misapprehended the evidence and appears to have ignored some important evidence in respect of the prior art.” (See paragraph 5 of FCA decision). The FCA however found that Teva had “failed to establish that the Judge made an overriding and palpable error in his appreciation of the evidence.” (See paragraph 10 of FCA decision). The FCA noted in its decision that the “Judge is presumed to have considered all the evidence before him. This presumption is not rebutted simply because the Judge does not refer to particular pieces of prior art (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at paragraph 46). Moreover, in this case, there are clear indications that the Judge was alert and alive to the issues raised, but in the end, simply did not agree with the appellant’s analysis of the evidence.” (See paragraph 12 of FCA decision). 

The decision can be found at: 


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Monday, October 7, 2013

Arr! Pirate Joe’s Blows Down Trader Joe’s in Trademark Infringement Dispute

Michael Hallatt of Pirate Joe’s makes his keep by purchasing goods from Trader Joe’s in the U.S. and reselling them to Vancouver residents. Trader Joe’s didn’t like the sound of that and took Michael to court, alleging trademark infringement and false advertising. They also said Michael was hurting their brand by the way he decorated his Kitsilano shop.

Trader Joe’s called upon a powerful U.S. law called the Lanham Act to take down Pirate Joe’s. "The Lanham Act, which is this very broad powerful statute that allows corporations to, kind of, you know, beat up on anybody that affects U.S. commerce is very, very strong and powerful and can essentially shut down commerce in another country," said Hallatt in an interview with CBC on October 4, 2013.

Trader Joe’s alleged that 40% of the customers who pay by credit card in their Bellingham location are Canadian. They went on to say that these customers would most likely stay in Canada if they could purchase the same goods locally. However, in today’s judgement, a Washington state judge dismissed the suit saying that Trader Joe’s failed to prove it competes for customers. They have 10 days to file an appeal.

Michael Hallatt spends approximately $4,000 - $5,000 per week purchasing goods from Trader Joe’s in Bellingham. The trademark infringement lawsuit was filed in Washington state in May, 2013.
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