In its decision ViiV Healthcare Company v Gilead Sciences Canada Inc. 2021 FCA 122 the Federal Court of Appeal has affirmed one of the first patent infringement actions to be heard by way of summary trial (discussed in our previous blog here) and, in doing so, offered clarity in the law pertaining to motions to quash summary judgment and summary trial motions themselves. This decision further solidifies the possibility of summary disposition in Canadian patent litigation.

In rare circumstances, “to stop harmful litigation conduct”[1] the Court may quash a motion for summary judgment or summary trial either on its own volition or on motion by a party. The Court’s authority to do so stems from the imperatives of Rules 3 and 4 of the Federal Courts Rules and the plenary powers of the Court. Success on a motion to quash or adjourn depends on the motion being brought promptly. If a party waits until after time and resources have been spent on the underlying motion, the benefit of quashing or adjourning it may be wasted.

The Court then turned to Rules 213-216 which govern summary judgment and summary trial motions. The Court noted that, although in some cases summary proceedings add to the cost and duration of litigation, there are instances where summary proceedings can “improve access to speedy, cost-efficient justice”.[2] The Court held that the Court below had appropriately weighed the evidence before it and concluded that patent construction and infringement could be properly adjudicated by way of summary judgement.

Finally, the Court addressed the infringement alleged by ViiV. The Court reaffirmed the longstanding principle that a patent must be read contextually in light of the patent as a whole and dismissed ViiV’s argument as a mere disagreement with how the trial judge applied the law to the facts. Since the trial judge made no palpable and overriding error in doing so, the appeal was dismissed.

For more information, please contact the authors and see our Intellectual Property Litigation page.

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[1] At para 20.

[2] At para 40.