ViiV Healthcare Company, et al. v. Gilead Sciences Canada, Inc.

(Federal) (Civil) (By Leave)


Intellectual property - Patents, Medicines, Judgments and orders, Summary judgments - Intellectual property — Patents — Medicines — Judgments and orders — Summary judgments — Applicants’ patent found to be not infringed by respondent’s product in a summary trial — Does claim construction remain a question of law? — How should the Court reconcile correctness review and deference to underpinning factual findings in claim construction? — Was the Federal Court of Appeal bound, by vertical stare decisis, to follow the “construction is a question of law” approach in Whirlpool? — Was the Federal Court of Appeal bound, by horizontal stare decisis, to continue to follow the Whirlpool approach? — Does the principle of universality require that claim construction review be a correctness review? — Does primacy of the claim language mean the judge should not read into the claims the features of the more preferable embodiments? — Was the Federal Court bound, by vertical stare decisis, to follow the “twin criteria” evidence approach from Khelawon, and was it required to correct the Federal Court’s error of law?.


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The applicants (collectively “ViiV”) own the 282 Patent that covers several classes of chemical compounds used in the treatment of HIV. ViiV brought an action against Gilead Sciences Canada, Inc. (“Gilead”) alleging that Gilead’s compound, bictegravir, infringed its patent. Gilead counterclaimed on the basis that ViiV’s patent was invalid. Gilead brought a motion for summary trial on the issue of patent infringement. The main issue was whether, based on the patent construction, bictegravir fell within the scope of claims 1, 11 and 16 of the 282 Patent. The Federal Court granted Gilead’s motion for a summary trial and held that the 282 Patent was not infringed by Gilead’s product. ViiV’s action was dismissed. This decision was upheld on appeal.