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Patents - Appeals. Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC [patent validity]
In Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC (Fed CA, 2023) the Federal Court of Appeal considers the SOR for patent 'validity' issues:[60] Turning to the issues of anticipation, obviousness and overbreadth, as GreenBlue acknowledges, the Federal Court’s impugned findings can only be overturned if the Court made a palpable and overriding error since these findings are factual in nature: see e.g., Abbott Laboratories at para. 24 (on anticipation); SmithKline Beecham Pharma Inc. v. Apotex Inc., 2002 FCA 216, 219 D.L.R. (4th) 124 at para. 15 (on anticipation); Packers Plus Energy Services Inc. v. Essential Energy Services Ltd., 2019 FCA 96, 164 C.P.R. (4th) 191 at para. 29 [Packers] (on obviousness); Teva Canada Limited v. Pfizer Canada Inc., 2019 FCA 15, 163 CPR (4th) 265 at para. 23 (on obviousness); Seedlings Life Science Ventures, L.L.C. v. Pfizer Canada U.L.C., 2021 FCA 154, 339 A.C.W.S. (3d) 69 at para. 65 (on overbreadth). . Eli Lilly Canada Inc. v. Apotex Inc.
In Eli Lilly Canada Inc. v. Apotex Inc. (Fed CA, 2023) the Federal Court of Appeal canvasses some patent standards of review (SOR):[32] Questions regarding the construction of claims and the construction of the inventive concept are questions of law (Apotex Inc. v. Allergan Inc., 2012 FCA 308, 105 C.P.R. (4th) 371 at paras. 50, 53, leave to appeal to the SCC refused, 35184 (9 May 2013)); Bristol-Myers Squibb Canada Co. v. Teva Canada Limited, 2017 FCA 76, 76 C.P.R. (4th) 216 at para. 74).
[33] Questions regarding whether the asserted claims are obvious raise findings of mixed fact and law, which, absent an extricable question of law, must be assessed using the standard of review of palpable and overriding error (Teva Canada Limited v. Pfizer Canada Inc., 2019 FCA 15, 163 C.P.R. (4th) 265 at para. 23 [Teva], Packers Plus Energy Services Inc. v. Essential Energy Services Inc., 2019 FCA 96, 164 C.P.R. (4th) 191 at paras. 29, 33, leave to appeal to SCC refused, 38694 (19 December 2019) [Packers Plus]).
[34] The failure to characterize a patent as a selection patent is not in itself an error of law but “may reflect a lack of understanding of the patent and its factual context” (Shire at para. 32).
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