text:
No Discretion to Extend Time Limits for Reinstatement of Abandoned Applications
Cloutier c Thibault 2014 CF 1135 St-Louis J
2,437,612, 2,470,139, 2,553,144
Mr Cloutier invented a new type of crimping tool for use in plumbing. He entered into a partnership with Mr Thibault to patent the invention and commercialize it [5]. Mr Thibault filed three patent applications for the invention without informing Mr Cloutier, and naming himself rather than Mr Cloutier as the inventor [6], [9]. Mr Cloutier successfully moved to have the partnership dissolved and to establish his entitlement to the inventions [11], but during and shortly after that litigation the applications were abandoned for failure to pay maintenance fees, in accordance with s 27.1 and 73 of the Act [12]. No application for reinstatement was made within the 12 month grace period provided by s 98 of the Rules.
In this case, Mr Cloutier asked the court to reinstate the application, and to name him as the inventor. St-Louis J refused, on the ground that the court has no jurisdiction in law or equity to extend the mandatory time limits established by the Act [23-24]. That proposition is well-established by the authorities cited by St-Louis J: see in particular Hoffmann-La Roche AG v Canada (Commissioner of Patents), 2003 FC 1381 [41-45] aff'd 2005 FCA 399 [7-8].
Given the mandatory nature of the time limits, this conclusion would evidently follow regardless of whether Mr Cloutier would have been in a position to seek relief in a timely manner, but the court noted that the evidence suggested that Mr Cloutier could have taken steps before the applications were irrevocably abandoned [25].
The court also refused to order the application amended to show Mr Cloutier as the inventor, as this would have been pointless given the refusal to reinstate the application [27].
Labels: Abandonment
No New Cases for the Week of 22 December
No new patent / NOC / data protection cases were released for the week of 22 December 2014.
Liability Decision is Res Judicata in a Bifurcated Action
Merck & Co Inc v Apotex Inc 2014 FC 1058 Hughes J var'g 2014 FC 883 Lafrenière J
1,275,350 – lisinopril – PRINIVIL
This motion to amend relates to the upcoming damages portion of a bifurcated action. In the underlying Liability decision, 2006 FC 524 aff'd 2006 FCA 323, the patent was held invalid and infringed, in part on the basis of the law set out in Boehringer (1962), 39 CPR 201. Subsequently, in its Viagra decision 2012 SCC 60 [57], the SCC reversed, or at least reinterpreted Boehringer on the relevant issue. In this motion Apotex argued that the law having changed, it should be able to amend its Statement of Issues to argue, in effect, that it should not be made to pay damages for infringement of an invalid patent. In the decision under appeal, Lafrenière J held that the amendment would not be allowed, on the basis of res judicata. In a brief decision, Hughes J has affirmed, largely adopting Lafrenière J's reasoning [7]. My post on Lafrenière J's decision discusses the issues in more detail. I noted that while Lafrenière J's reasoning was strong, I was not convinced that the prior Canadian case law was entirely settled. In adopting Lafrenière J's reasons, Hughes J's decision clarifies Canadian law on this point.
In a point which I did not discuss in my previous post, Apotex had also sought an amendment alleging that Merck had breached provisions of the Competition Act. That amendment had also been refused by Lafrenière J. Hughes J allowed these amendments in light of certain concessions made by Apotex regarding their scope [14]-[15].
Labels: Estoppel, Res Judicata
No New Cases for the Week of 8 December
No new patent / NOC / data protection cases were released for the week of 8 December 2014.
A New Framework for Determining Reasonable Royalty Damages in Patent Litigation
Following a jury trial in 2012, a US federal district court entered judgment in the amount of $1 billion in favor of Monsanto in a patent infringement dispute against DuPont. The strange thing about this case is that DuPont had not sold any infringing product at all; yes, you are reading correctly – $1 billion in royalties on zero sales. The $1 billion damages award reflected the jury's best estimate of the lump-sum royalties that would have been agreed to in a hypothetical negotiation taking place just before the infringement began, in which the parties would only have had information available to the parties at that time ("ex ante information") That DuPont ultimately did not actually sell any infringing product was ignored as being information that would not have been available to the parties at the time of the negotiation ("ex post information").
Professor Tom Cotter and I have just posted a draft paper on SSRN, "A New Framework for Determining Reasonable Royalty Damages in Patent Litigation," arguing that this result is wrong. More generally, we argue that the hypothetical negotiation used for assessing a reasonable royalty should be assumed to take place at the time of first infringement (or, more precisely, first reliance), but the parties should be assumed to have available to them all the information that was available at trial. We call this the "contingent ex ante" approach; the hypothetical negotiation takes place ex ante, but it is contingent on all information available ex post. We apply our analysis to a variety of contexts, including standard essential patents; unexpected exogenous events (the market value of the invention changes because of unforeseen factors); separate and distinct infringements (when should damages be assessed on the basis of two distinct hypothetical negotiations, rather than one); regulatory uncertainty (when the patented invention received regulatory approach after the time of the first infringement); non-infringing alternatives (when a patent covering an NIA is held to be invalid after the time of the first infringement, but prior to trial), as well as in the context of lump-sum versus running royalties (which raises considerations of risk-shifting, strategic considerations in licensing and the time value of money).
While our discussion focuses entirely on US law, in my view the principles we discuss are equally applicable to Canadian law. Indeed, I suggest the argument is even stronger in Canadian law, for two reasons.
First, our basic argument is that using all available information, including ex post information, better serves the purpose of the Patent Act, which is to provide an incentive to develop inventions for the benefit of the public. Using ex post information allows more accurate determination of the true value of the invention, and so better aligns the patent incentive with the purpose of the Act. While patent damages are often analogized to a species of tort, they are ultimately statutory, and under the modern Canadian approach to statutory interpretation, the statutory provisions should be interpreted in a manner that it consistent with the purpose of the Act. (This makes our argument stronger than in the US, which has not yet fully embraced a purposive approach to statutory interpretation.)
Secondly, our argument is fully consistent with the Canadian approach to tort damages. In Athey v Leonati [1996] 3 SCR 458, the SCC said "past events must be proven, and once proven they are treated as certainties" [28]. This refers to all event prior to trial: "In this case, the disc herniation occurred prior to trial. It was a past event, which cannot be addressed in terms of probabilities" [30]. Most obviously, special damages are assessed on the basis of reasonable expenses that were actually incurred prior to trial, not what expenses the parties might have anticipated would be incurred. The fact that the plaintiff had not in fact suffered any harm as a result of a tort, perhaps because of a miraculously quick recovery, or that she had suffered unusually severe harm (the thin-skull rule), would certainly be considered in a Canadian tort case; we argue that in a case like Monsanto v DuPont, the fact that the infringer had not in fact made any sales should also be taken into account, for essentially the same reasons.
Here is the abstract:
Conventional analysis often assumes that there are only two theoretical options for calculating a reasonable royalty in patent disputes: a "pure ex ante" approach, under which a court reconstructs the hypothetical bargain the parties would have struck prior to infringement, based on the information available to them at that time; and a "pure ex post" approach, under which the court considers the bargain the parties might have reached as of some later date such as the date of judgment. The first approach avoids patent holdup - basing the royalty partly on the infringer's ex post switching costs - but cannot easily explain other longstanding features of how royalties are calculated, and can lead to awards that reflect the parties' erroneous ex ante expectations. By contrast, the pure ex post approach uses more accurate information about the invention's actual value, but it also enables the patentee to capture some of the patent's ex post holdup value. In this Article, we show that a "contingent ex ante" framework, under which the court reconstructs the bargain the parties would have reached ex ante, based on all relevant information that is available ex post, is superior to both of the conventional approaches. More specifically, our framework enables courts to base the royalty on the most accurate information available of patent value while avoiding the holdup risk arising from the pure ex post approach. We analyze how courts can apply our approach in various settings, including cases involving SEPs, sequential infringement, regulatory uncertainty, and unexpected exogenous events.
The paper is available at SSRN. It is a draft, so comments are welcome.
Labels: Damages, Reasonable Royalty, Remedies
"The reasonable person thinks in terms of economics, not principle"
Apotex Inc v Canada 2014 FC 1087 Hughes J
This decision emerged from a test case in which Apotex and Health Canada battled over the question of whether a generic could apply for an NOC on the basis of a foreign reference product. The case settled on terms favourable to Apotex, but HPB did not live up to the settlement agreement. In this decision Hughes J held Canada liable for breaching that agreement (though because of quirks in the pleadings, the formal ground of liability was in tort rather than contract). In an interesting part of the decision, Hughes J held that Apotex was subject to a duty to mitigate, which would essentially have required it to abandon its test case and leave the question of legal principle unanswered. Hughes J held that the duty to mitigate was nonetheless applicable, because "the reasonable person thinks in terms of economics, not principle" [159].
In the late 1980s, the attitude of what was then the Health Protection Branch (HPB) of Health Canada towards the use of a foreign drug product as the reference product in a generic's application for an NOC was uncertain. It was the usual practice to use a product approved in Canada as a reference product, but occasionally an NOC would be granted on the basis of a foreign reference product. Apotex wanted a test case to establish whether it was entitled to use a foreign reference product [105]. It picked trazodone, and in January 1988 Apotex filed a New Drug Submission comparing its Apo-Trazad product to the innovator's US product. On the particular facts, the use of a foreign reference product was scientifically sound, but HPB was concerned that allowing the use of a foreign reference product might set a precedent for circumstances in which the comparison was not appropriate [39]. Consequently, HPB "insisted on a Canadian standard, unless the United States reference product could be 'conclusively proven to be identical' to the Canadian product" [44]. The requirement of identicality made it effectively impossible to use a foreign reference product [44]. In other words, both Apotex and HPB were treating this as a test case. In light of this impasse, in 1990 Apotex sought judicial review of the Minister's position. That litigation was settled on terms favourable to Apotex by a Settlement Agreement in November of 1990 in which HPB agreed to assess the application on the basis of "equivalency" rather than identicality [51].
Labels: Remedies, Settlement
No New Cases for the Week of 10 November
No new patent / NOC / data protection cases were released for the week of 10 November 2014.
It Is Not Necessarily an Abuse of Process for an Innovator to Switch Positions Across NOC Proceedings
Apotex Inc v Pfizer Canada Inc and G.D. Searle & Co / celecoxib (NOC) 2014 FCA 250 Noël CJ: Trudel, Boivin JJA aff'g ) 2014 FC 38 and NOC) 2014 FC 314 Harrington J
2,177,576 / celecoxib / CELEBREX
The decisions under appeal, Mylan / celecoxib (NOC) 2014 FC 38 and Apotex / celecoxib (NOC) 2014 FC 314 (blogged here and here, respectively), turned primarily on the construction of the promised utility of the '576 patent. In both cases Harrington J interpreted the promise of the patent modestly and granted an order of prohibition to Pfizer. In a decision which is primarily an application of Plavix FCA 2013 FCA 186 (blogged here), the FCA has now affirmed both of Harrington J's decisions. (While Harrington J's decisions were separate, the reasoning was common, and the appeals were heard together [3].) While the FCA decision elaborates on some points relating to the promise of the patent, it is perhaps more noteworthy in its treatment of abuse of process, particularly the holding that it is not necessarily an abuse of process for an innovator to switch positions across NOC proceedings.
Labels: Abuse of Process, Comity, False Promise, Promise of the Patent, Utility
Ex Turpi Causa Not Relevant to Patent Litigation
Les Laboratoires Servier & Anor v Apotex Inc & Ors [2014] UKSC 55 aff'g [2012] EWCA Civ 593 (IPKat) rev'g [2011] EWHC 730 (Pat) (here and IPKat)
perindopril; Ex turpi causa
Patent protection is national, but trade and innovation incentives are international. This case begins to address that tension. The UKSC held that ex turpi causa is not applicable in the patent context, and so will not affect litigation where goods sold in one country were infringing in another country. Instead of using the blunt hammer of ex turpi causa, the tension should be resolved with the finer sword of damages. The result is to make Canadian damages law more relevant to foreign disputes; the damages portion of the bifurcated Canadian Perindopril, 2008 FC 825 aff'd 2009 FCA 222 litigation, in particular, has taken on added significance.
In 2006 Servier commenced an action in the UK against Apotex for infringement of its European patent for a crystalline form of perindopril. Servier obtained an interlocutory injunction, subject to the usual undertaking in damages. Servier's action was ultimately dismissed, as the patent was declared invalid, and Apotex sought damages on the undertaking for the loss of UK sales. However, the perindopril which Apotex would have sold in the UK would have been manufactured by Apotex in Canada, and Servier also held a Canadian patent for the compound perindopril itself. In proceedings paralleling the UK litigation, Servier sued Apotex in Canada for infringement of the Canadian compound patent. An interlocutory injunction was denied, but Servier was ultimately successful. Thus it became clear that manufacture in Canada of the product which Apotex would have sold in the UK but for the interlocutory injunction, would have infringed the Canadian patent. In the UK proceedings on the undertaking, Apotex conceded that the award on the undertaking should be reduced by an amount equal to the liability that Apotex would (hypothetically) have faced under Canadian law for manufacturing the perindopril which it would (hypothetically) have sold in the UK had the interlocutory injunction not been in place [EWCA 22]. Servier, on the other hand, argued that Apotex should be entirely precluded from collecting on the undertaking because the Canadian infringement constituted sufficient "turpitude" to engage the doctrine of ex turpi causa. (This summarizes a somewhat complex procedural history, described in more detail at [2]-[8]; and see also my IPKat post on the EWCA decision.)
Labels: Damages, International Aspects, Remedies
STELARA / Anti-IL-12 Antibody Decision Set Aside
Janssen Inc v AbbVie Corporation, 2014 FCA 242 Trudel, Webb, Boivin JJA (for the Court) rev'g 2013 FC 1148 Hughes J and setting aside 2014 FC 55 Hughes J
Janssen Inc v Abbvie Corporation 2014 FCA 241 Trudel, Webb, Boivin JJA (for the Court) setting aside 2014 FC 489 Hughes J
2,365,281 / anti-IL-2 antibodies
In 2013 FC 1148 Hughes J dismissed Janssen's motion to amend its Schedule A to its Defence and Counterclaim so as to remove some and add other prior art references. The decision of the FCA in 2014 FCA 242 reverses that decision of Hughes J. Consequently, because the amendments in question "go to the heart of one of the major invalidity issues" [15], the FCA also set aside Hughes J's subsequent decision in the infringement action itself, 2014 FC 55 (blogged here and here). In light of the intimate relationship between the validity and infringement issues, the FCA declined to order a new trial solely on the issues most directly affected by the prior art in question; instead, it acceded to Janssen's request for a new trial of all the issues [32]. The FCA also ordered that the trial would be before a new judge [32].
In 2014 FCA 241 the FCA set aside the injunction that had been granted by Hughes J in 2014 FC 489 (blogged here) in consequence of his liability decision. While the reasons were very brief, it is evident that the injunction was set aside purely in consequence of the setting aside of the liability decision, and not on its own merits.
In 2014 FC 863, Janssen was held to be prima facie in contempt of that injunction, as blogged here. Presumably the setting aside of the injunction would provide a defence to the prima facie contempt.
Res Judicata in a Bifurcated Action
Merck & Co Inc v Apotex Inc 2014 FC 883 Lafrenière J
This motion to amend a Responding Statement of Issues raises a very interesting and difficult issue respecting the application of res judicata to a bifurcated action when the law has changed between the liability and damages portions, though at the end of the day I doubt the resolution of that question would make any difference to the outcome.
In the underlying Lisinopril Liability decision, 2006 FC 524 aff'd 2006 FCA 323, Apotex argued that the '350 patent was invalid because it was improperly divided from the parent '340 application, which disclosed only one invention. Hughes J rejected this on the basis that he was bound by prior case law, including Boehringer (1962), 39 CPR 201, to hold that each claim constitutes a different invention [116]. The FCA affirmed on this basis [39]. Subsequently, in its Viagra decision 2012 SCC 60 [57], the SCC held that Boehringer "does not stand for the proposition that every claim in a patent application is a separate invention." In this motion Apotex argued that the law having changed – or at least, the Liability decision having been based on a misunderstanding of the law – it should be able to amend its defence in the damages portion of the action to argue that the Merck did not suffer any damages as a result of Apotex' activities [28.12].
Essentially, the argument is that even though Apotex has been found liable for infringement, it should not be made to pay damages for infringement of an invalid patent. In support, Apotex relied on the UKSC decision in Virgin Atlantic [2013] UKSC 46. In Virgin Atlantic, the EWCA had held the patent at issue to be valid and infringed, and ordered an enquiry as to damages [11]. Subsequently, the EPO held the patent to be invalid [12]. The effect of the EPO decision is that the patent on which the liability decision was based is deemed never to have existed [27]. However, the EPO decision could not be raised by way of an appeal of the liability decision, as the order of the EWCA was final and not subject to appeal [16]. The question before the UKSC was whether the defendant should be able to raise the invalidity in the enquiry as to damage [16]. The UKSC held that the invalidity could be considered in the damages enquiry [37].
Labels: Estoppel, Res Judicata, Unity of Invention
No New Cases for the Week of 20 October
No new patent / NOC / data protection cases were released for the week of 20 October 2014.
Keep in mind that I generally only blog on substantive patent / pharma cases. If you want to keep abreast of all new Canadian decisions, including procedural decisions and cases outside that core substantive area, I recommend subscribing to the Daily Intellectual Property News service from Alan Macek's IPPractice.
More on the Perfect Match Requirement of Listing on the Patent Register
ViiV Healthcare ULC v Teva Canada Ltd 2014 FC 893 Hughes J aff'g 2014 FC 328
Milczynski J (here)
abacavir & lamivudine. / KIVEXA & TRIZIVIR / 2,289,753
Hughes J applied the "perfect match" requirement for listing of a patent on the Patent Register, as set out by the FCA in the leading case of Gilead / COMPLERA 2012 FCA 254 (blogged here), to uphold Milczynski J decision (blogged here) that the '753 patent cannot be listed on the Patent Register against KIVEXA or TRIZIVIR. There is not really any new law in this decision, though Hughes J does provide a thorough review of the case law at [47], and a list of principles emerging from those cases at [48]. The main point of interest is that in this litigation, the Minister of Health had argued that while a perfect match is required to list a patent claiming a formulation under 4(2)(b) of the NOC Regulation, a perfect match is not required to list of a patent claiming a medicinal ingredient, which is governed by 4(2)(a). However, as Milczynski J held, in Gilead the FCA clearly held that the perfect match is required under 4(2)(a), and Hughes J has now affirmed. In other posts on the listing requirement I have argued that the perfect match requirement is rigid formalism, because eligibility for listing turns on how the claims are drafted rather than on the substantive scope of the claims. I can understand how the "relevant" standard developed by the courts under the old Regulations was too liberal, but requiring a perfect literal match strikes me as too strict; it seems to me that a "would necessarily infringe" standard would strike a better balance. But the point is settled law now.
Here is the summary of the law provided by Hughes J:
[48] I draw the following principles respecting the interpretation of the various subsections of 4(2) of the NOC Regulations having regard particularly to the Federal Court of Appeal decisions and the Reasons of Justice Russell in Bayer, as affirmed by the Federal Court of Appeal:
• There is no sound reason to adopt different legislative requirements of product specificity for the various subparagraphs of subsection 4(2) of the NOC Regulations (Gilead, paragraph 39);
• absent precise and specific matching between what the patent claims and the product/use/dosage forms for which the NOC has been granted to the first person, the Minister cannot properly list the patent (Purdue, paragraphs 43; Abbott, paragraph 49; Gilead, paragraphs 37-38);
• a claim for a formulation means a claim that includes both medicinal and non-medicinal ingredients. A claim directed to medicinal ingredients, without claiming also non-medicinal ingredients, does not qualify for listing as a formulation under subsection 4(2)(b) of the NOC Regulations (Gilead, paragraphs 27 to 32, 49; Bayer, paragraphs 67 to 69).
• where a patent claims only one medicinal ingredient, it cannot be listed as against an NOC obtained for two (or more) medicinal ingredients; at least where, to use the words of Russell J, at paragraph 69 of Bayer, where "…a drug with one medicinal ingredient will have a different effect from a drug where two medicinal ingredients are combined "to achieve the desired effect [emphasis added]." This same distinction appears in Gilead, where Trudel JA wrote at paragraphs 31 and 32:
31 Finally, the overall inventive step of the '475 Patent, as found by the Judge, is the combination of chemically stable medicinal ingredients. The '475 Patent emphasizes the beneficial effects of combining chemically stable combinations of medicinal ingredients.
32 Thus, I conclude that the '475 Patent falls under paragraph 4(2)(a), as the relevant claims consist of chemically stable combinations of medicinal ingredients.
As the last bullet point indicates, Hughes J considered whether the prior case law left open the possibility that a patent claiming one medicinal ingredient might be listable against a drug with two medicinal ingredients if there was no synergy between drugs. However, he ultimately held that
[89] In my view, it is not productive when considering the listing requirements of subsection 4(2) of the NOC Regulations to consider synergy or not. The decision of the Federal Court of Appeal in Gilead is sufficiently clear. A patent claim for only one medicinal ingredient cannot support a listing under the NOC Regulations where the underlying NOC is for a combination (synergistic or otherwise) of two or more medicinal ingredients.
For a discussion of the facts related to KIVEXA, see my post on Milczynski J's decision, here. This appeal also consolidated a closely related proceeding in which Apoex also challenged the listing of the '753 patent against KIVEXA [9], as well as a third proceeding in which Apotex challenged the listing of the '753 patent against TRIZIVIR. The legal issues were substantially the same in all the proceedings.
Labels: Eligibility for Listing on Innovative Drug Register, Patent List Eligibility
Prosecution History Estoppel Meets Section 53
NOV Downhole Eurasia Limited v TLL Oil Field Consulting 2014 FC 889 Mosley J
The pigeons are coming home to roost from the SCC's ill-advised holding in Free World 2000 SCC 66, [66], that prosecution history is not to be used in claim construction (for my critique of the SCC decision, see here).
The invention at issue in NOV Eurasia v TLL Consulting is a downhole oilwell tool which comprises a valve. The defendant alleged that during patent prosecution the applicant had amended the application to restrict the claims to embodiments which included a transverse valve, and they now sought to assert the patent against the defendants even though the allegedly infringing tool does not have a transverse valve [9].
If we had a doctrine of prosecution history estoppel, this would be a straightforward matter. If indeed the applicant had given up the scope in question during prosecution, then the patentee would be estopped from reclaiming that scope in litigation, and the patent would be construed accordingly. The claim, and the patent, would remain valid, but the defendant's tool (assuming it did not in fact contain a transverse valve), would not infringe. This is an eminently fair and sensible result.
But because the SCC in Free World held that prosecution history cannot be considered as a matter of claim construction, the defendant in this case pleaded that the applicant's statements were made "with the intention of misleading the Patent Office," and so the entire patent is void pursuant to s 53(1) [9], which provides that:
A patent is void if any material allegation in the petition of the applicant in respect of the patent is untrue, or if the specification and drawings contain more or less than is necessary for obtaining the end for which they purport to be made, and the omission or addition is wilfully made for the purpose of misleading.
The patentee in this case brought a motion to have the paragraphs pleading s 53 struck. Prothonotary Milczynski granted the motion, but Mosley J reversed, holding, after a review of the case law, that "[i]t remains a live issue whether section 53 of the Patent Act may void an entire patent due to steps taken in the application process" [32]. I think Mosley J is right on this point, but given the low threshold for allowing the pleading to stand I will not review the case law in detail.
The broader point is that the SCC's Free World holding has created an unpalatable dilemma for the lower courts. If s 53 cannot be used in this manner, then a patentee may be able to narrow the scope of its claim during prosecution to obtain the patent and then try to reclaim that scope in subsequent litigation. On the other hand, if s 53 can be used, then what would have been a battle over claim construction turns into an atomic bomb of patent invalidity. This will increase uncertainty, as opposed to the option of admitting prosecution history in claim construction, because the intent element of s 53 is inherently uncertain. Moreover, to the extent that there is any justification for excluding prosecution history, it is to simplify the claim construction exercise; but to introduce exactly the same evidence under s 53 means that while claim construction is simpler, the litigation as a whole is at least as complex. Indeed, it will be more complex, because the stakes have been raised from scope to validity, ensuring that all the more money will be put into this uncertain issue.
It is not unlikely that in this case the s 53 issue will ultimately become moot, even if it does go to trial. The claims themselves refer to "the valve member being transversely movable," and the court may well construe the claims to exclude tools without a transverse valve even without the aid of the prosecution history. That will be all the more unfortunate, as parties in future litigation will have to engage the s 53 issue, instead of what could have been a much simpler matter of claim construction. The SCC in Free World feared opening the "Pandora's box" [66] of file wrapper estoppel. By refusing to do so, it opened the far more dangerous box of s 53.
Labels: Claim Construction, Prosecution History, Wilful Misleading
Form and Function in the Law of Utility
I have criticized the promise doctrine, both in this blog and in my article "The False Doctrine of False Promise" (2013) 29 CIPR 3. In their article published in the most recent issue of the CIPR, "The Promise of the Patent in Canada And Around the World" 30 CIPR 35, Richard Gold & Michael Shortt defend the promise of the patent. My reply article, "Form and Function in the Law of Utility: A Reply to Gold & Shortt," has been accepted by the CIPR. A good draft, subject to copy-editing, is available from SSRN. Here is the abstract:
In a recent article, "The Promise of the Patent in Canada And Around the World," Richard Gold and Michael Shortt argue that the law relating to the controversial "promise" branch of the Canadian law of utility is justifiable as a matter of policy, that it is long established in Canadian law, and that promises are enforced in a number of other jurisdictions. In this article I argue that Gold & Shortt fail to appreciate the functional distinction between the two branches of the utility requirement, which are consequently conflated throughout their article. The points they make in respect of the promise doctrine actually relate, for the most part, to the traditional "scintilla" branch of the law of utility, though they also conflate the promise of the patent with obviousness, sufficiency and overbreadth. This article uses Gold & Shortt's article as a foil to explore the functional nature of the two branches of the law of utility and the differences between them. I will also contrast utility with sufficiency, obviousness and overbreadth.
Labels: False Promise, Promise of the Patent, Utility
Inventorship in a Combination Invention
Drexan Energy Systems Inc v The Commissioner of Patents and Thermon Manufacturing Co, 2014 FC 887 O'Keefe J
In 2006 Steve Makar, Konrad Mech, Wells Whitney and Umesh Sopory perceived some deficiencies heating cables used to keep pipes from freezing in cold environments, and they decide to create a new type of heating cable without those defects [3]. Their collaboration resulted in the '561 patent, for which Dr Whitney and Mr Sopory were the only listed inventors. By 2010 the relationship between the men had broken down. The interest of Dr Whitney and Mr Sopory was assigned to Thermon, and Mr Makar and Mr Mech was assigned to whatever rights they had Drexan, one of Thermon's competitors. In this application Drexan sought to have Mr Makar and Mr Mech added to the '561 patent as co-inventors [6]. The court noted that s 52 of the Act gives the court the authority to make such an order, and that the burden lay on the applicant [23].
The court reviewed established law on inventorship and noted that the question is whether Mr Makar and Mr Mech were in some way responsible for the inventive concept, though it is not necessary for them to be wholly responsible for it, "so long as his or her ingenuity is applied to the original inventive concept and not just verification" [24, 26 citing inter alia Wellcome / AZT, 2002 SCC 77, [96]).
The main legal point of interest is that the heating cable was a combination of elements known in the prior art, and the inventive concept lay in the combination of particular elements, not in the elements themselves [27].
[29] This means that the focus has to be on whether Mr. Makar's and Mr. Mech's contributions were directed not only to suggested features (see Weatherford (FC) at paragraph 260), but to how they could actually be combined. Put another way, if there are two competing products that have different advantages and disadvantages, it takes no ingenuity at all to suggest that it would be great if there could be a product that has the advantages of both without the disadvantages of either. If there is any inventive concept at all in combining those two products, it lies in discovering how to make a product that has the desired attributes of both and it is to that process that the inventive contribution must be made.
The case then came down to an issue of credibility [30], and ultimately O'Keefe J held that Mr Makar and Mr Mech were not co-inventors: "Undoubtedly, Mr. Makar and Mr. Mech had useful input into the design of the cable, but the applicant has not proven that it was anything more than suggesting desired features and communicating feedback from potential customers" [56]. The application was therefore dismissed [57].
(Thanks again to IPPractice for posting this case - that's six in a row.)
Labels: Inventorship
Thanks to IPPractice!
I'd like to give a big thanks to Alan Macek's IPPractice for providing timely access to recent judicial decisions, as the Federal Courts have gotten increasingly slow about releasing new decisions on their website. The last five cases I've blogged about have come to my attention via the IPPractice Daily Email service, and four of those are recent FC decisions which have still not been released on FC website, and so are only publicly available through IPPractice. (The fifth is a BCSC case, available on Canlii, which I don't check on a regular basis.)
Timely access to recent caselaw is essential to keep up with the latest trends and developments. Alan's service helps us all, and I urge you to help him; if you have a copy of unreleased public reasons that you wouldn't mind making public, consider sending it to Alan so he can make it available to the rest of us.
What is "the" Inventive Concept?
Alcon Canada Inc v Apotex Inc 2014 FC 791 Kane J
2,606,370 / travoprost formulation / TRAVATAN Z / NOC
The '370 patent relates to formulations of travoprost, an anti-glaucoma drug, with a non-conventional preservative system, based on zinc ions. The motivation for the invention was to avoid the potentially harmful effects on the cornea of conventional preservatives such as benzalkonium chloride (BAK). In this NOC proceding Apotex successfully attacked the '370 patent as being obvious, though a inutility attack failed.
The conclusion that the claims at issue were obvious ultimately turned on the facts. One of Alcon's own prior art products, the tear replacement product Systane Free, also used a non-conventional preservative system which very similar, even in the specific components, to the claimed formulation [236], [342]. The evidence accepted by Kane J was to the effect that it would have been obvious to extend the same preservative system to travoprost, given the acknowledged motivation to avoid the use of BAK [348].
There is, however, one aspect of Kane J's opinion which I find disquieting. A substantial part of the obviousness analysis concerned the identification of the inventive concept [163]-[197], including extensive testimony from the experts, and a thorough parsing of the specification. (Kane J noted that because the claims were to a bare chemical formula, the inventive concept cannot be identified without looking at the specification [180], which, in my view, is clearly correct.) Kane J's ultimate identification of the inventive concept drew heavily from elements identified in the specification itself.
None of this analysis is objectionable in principle; certainly, expert evidence and the specification should be considered in assessing the putative inventive contribution. But the overall tenor of the analysis suggests a focus on identifying "the" inventive concept from the specification, which then becomes the focus of the obviousness analysis. This would be problematic in two respects. First, by focusing on the specification, this analysis could turn the obviousness inquiry into a subjective analysis, in which the question is whether the inventive contribution identified by the applicant is obvious. This is contrary to the principle that the obviousness analysis is objective. It would be evidently be wrong to hold an invention to be non-obvious because the applicant asserts in the specification that it is a work of genius, but it is also wrong to hold a patent obvious because the contribution identified by the applicant turns out to be obvious. For example, the inventor may believe that she has discovered a whole new class of compounds with unexpected properties, and she has claimed both the genus and some particular species. It may turn out that the inventor had overlooked some relevant prior art, and in fact it was obvious or anticipated that some members of the class had the properties in question, but it was nonetheless surprising that the particular claimed species had those properties. The question is not whether what the inventor thought she had contributed is truly inventive; it is whether what she actually contributed is inventive: see Nichia Corporation v Argos Ltd, [2007] EWCA Civ 741 at [14]-[19].
Second, as a corollary, it would be wrong to focus on identifying "the" inventive concept, which is thereafter the sole focus of the obviousness analysis. If a putative inventive concept is examined and found to be wanting, the objective nature of the obviousness analysis makes it necessary to ask whether some other aspect of the invention might be inventive. So, if an invention claims a solution to a problem, it may be non-obvious either because the solution was non-obvious, or because the problem itself was non-obvious; it is necessary to ask both questions, not just one. As the EPO Guidelines explain, the question is the formulation of the objective technical problem:
The objective technical problem derived in this way may not be what the applicant presented as "the problem" in his application. The latter may require reformulation, since the objective technical problem is based on objectively established facts, in particular appearing in the prior art revealed in the course of the proceedings, which may be different from the prior art of which the applicant was actually aware at the time the application was filed. In particular, the prior art cited in the search report may put the invention in an entirely different perspective from that apparent from reading the application only. Reformulation might lead to the objective technical problem being less ambitious than originally envisaged by the application.
It is true, of course, that the Windsurfing/ Pozzoli approach as approved by the SCC in Sanofi 2008 SCC 61 [67] refers to identification of the inventive concept as one of the steps, but the inventive concept is by no means the focus of the analysis. Indeed, the test is very casual about the inventive concept: "Identify the inventive concept of the claim in question or if that cannot readily be done, construe it." That is, don't worry too much about the inventive concept – the crucial question [67(4)] is whether the differences between the state of the art and the invention as claimed were obvious.
This is a long-winded discussion for a point that probably had no real effect on the result, but there was a similar problem with Kane J's analysis in the earlier Travoprost case, 2014 FC 699 discussed here. I am concerned that this may signal a new trend that has the effect of improperly turning the obviousness analysis into a subjective inquiry, in the same way that the promise doctrine has made utility a subjective inquiry.
Turning then to utility, the issue turned entirely on the construction of the promise. Apotex argued that the patent promised minimization or reduction of side effects [352], while Alcon argued that the utility is simply to be useful and to meet the USP preservative efficacy testing standards [351]. Like O'Keefe J in the recent decision Dow v NOVA decision, 2014 FC 844 (blogged here), Kane J relied both on the leading FCA decision, Plavix 2013 FCA 186, for the proposition that the promised utility must be explicit [408], and that "not every statement of advantage in the specification rises to the level of promised utility" [356], and also on Zinn J's statement in Fournier / Fenofibrate 2012 FC 741 (discussed here), for the proposition that the focus should be on the claims [360]. In light of this jurisprudence, and noting in particular the absence of any promise of reduced side effects in the claims [416], Kane J held in favour of Alcon's interpretation of the promise [417]. This construction of the promise effectively decided the issue of utility in favour of Alcon, because Apotex's argument was focused entirely on the promised utility as Apotex had construed it [427], and did not address the issue of demonstrated or soundly predicted utility from the perspective of "simple utility" [440]. The unchallenged evidence led by Alcon was therefore sufficient to establish utility on the basis of sound prediction [446].
Note: see also 2014 FC 699 in which the claims of a different patent, 2,129,287, were to the use of travoprost for the treatment of glaucoma, as opposed to the travoprost formulation. Kane J held the claims of the '287 patent were obvious and anticipated, though the utility attack also failed: see here.
Labels: False Promise, Inventive Concept, Obviousness, Promise of the Patent, Utility
Commissioner Not to Be Named as a Party in Appeals from Refusal of Application
Blair v Attorney General of Canada, 2014 FC 861 Strickland J
Application 2,286,794 / "SUBWAY TV MEDIA SYSTEM"
The '794 application claims a subway car with video screens mounted at the junction of the sidewall and ceiling [6]. The Commissioner rejected the claims as being obvious, and Strickland J, applying a deferential standard of review to the Commissioner's application to the facts of the (correct) obviousness test, affirmed.
The most interesting aspect of this decision is Strickland J's holding that the Commissioner should not be named as a respondent in the appeal [42]. This seems to be a departure from past practice, though as Strickland J pointed out, in cases such as Harvard College v Canada (Commissioner of Patents), 2002 SCC 76, and The Attorney General of Canada and The Commissioner of Patents v Amazon.com, Inc 2011 FCA 328, the issue of the Commissioner being named as a party does not appear to have been disputed [49]. I don't have a good sense of what the practical implications of this holding will be, but it was Attorney General which sought to have the Commissioner removed, so presumably the government is satisfied that it can properly conduct such appeals without the participation of the Commissioner.
Labels: Obviousness, Procedure
Janssen Prima Facie in Contempt of STELARA Injunction
Abbvie Corp v Janssen Inc / Contempt 2014 FC 863 Brown J
2,365,281 / anti-IL-12 antibodies / STELARA
After Janssen's STELARA had been held to infringe AbbVie's '281 patent (2014 FC 55, blogged here), Hughes J granted an injunction, with important exceptions, prohibiting Janssen from making, selling or promoting STELARA (2014 FC 489). In this decision, Brown J has held that Janssen is prima facie in contempt of that injunction. Brown J's interpretation of the injunction strikes me as strict, but not unreasonable. If there is a general lesson here, it is perhaps that a limited injunction may be a better outcome for the defendant than a complete injunction, but compliance may be less straightforward, and it seems that the courts will not be inclined to give the infringer much leeway.
As discussed here, STELARA is used to treat psoriasis (as well as psoriactic arthritis). AbbVie sells HUMIRA, a competing product for psoriasis treatment, but HUMIRA has a different mechanism of action from STELARA. For most patients, the two drugs are equally effective, but for some patients STELARA may work when HUMIRA does not. Consequently, the injunction granted by Hughes J permitted Janssen to continue selling STELARA, but not to continue promoting its use [18]:
[2] The injunction set out in paragraph 1, above, shall not prohibit Janssen from:
B. doing any act solely intended to provide STELARA for the treatment of psoriasis to a person who has not previously received STELARA for that purpose, provided that such person's own physician has determined that such treatment is necessary for that purpose.
Provided that Janssen shall not communicate directly or indirectly with any such physician for the purpose of influencing the decision to initiate or continue such treatment.
[3] For greater certainty and without restricting the generality of the injunction provided herein:
A. Janssen shall not, directly or indirectly, detail, advertise, promote or make any representations or claims, in Canada, respecting the use of STELARA for the treatment of psoriasis;
[4] For greater certainty, and without restricting the generality of the injunction provided herein:
D. Janssen's Medical Information Group may respond to enquiries about STELARA;
After the injunction was granted, Janssen anticipated that its sales representatives ("detailers") who had previously been marketing STELARA to dermatologists would be asked about STELARA by those physicians. Janssen accordingly prepared a "script" to be used by detailers in responding to such inquiries. The script was to be proactively delivered by detailers (apparently by reading it verbatim), on their next visit with the dermatologist [30].
The script referred to the litigation, and stated that detailers could not provide much information, though information could be provided by Janssen's Medical Information Group [29]. The script also contained the following contentious language:
It is important to note that this court order does not impact your ability to prescribe STELARA® to your patients. The product itself has not changed and there are no changes from a safety and efficacy standpoint. The court order does not impact the BioAdvance® program.
(The BioAdvance program helped patients secure funding to cover the cost STELARA.)
After a complaint by AbbVie, that language was changed to the following [33]:
It is important to note that this court order permits your existing Stelara patients (those that have already received at least one injection of Stelara) to continue to receive Stelara. Patients who have not previously received Stelara for the treatment of psoriasis may receive Stelara if you determine that Stelara is necessary for the treatment of their psoriasis.
The product itself has not changed and there are no changes from a safety and efficacy standpoint. The court order does not impact the BioAdvance® program.
Brown J held that all of these statements constituted a prima facie contempt [59]. He held, in effect, that whether or not these statements were true [68], there were representations that were promotional and marketing in nature because they sought to influence the physician's treatment decisions [67], contrary to the terms of the injunction. The fact that Janssen took a proactive approach and that it was the detailers that delivered the message, also appears to have been important [63].
While Brown J's decision strikes me as a reasonable interpretation of the terms of the injunction, I wonder how Janssen should have handled the anticipated inquiries by dermatologists. It is clear that the sales representatives should not have broached the subject at all. Since Janssen's Medical Information Group was expressly permitted to respond to enquiries about STELARA, presumably, if asked about STELARA, a sales representative would be permitted to instruct a dermatologist to call the Information Group. But what would the Information Group be permitted to say? Would the statements made in the script constitute contempt if made by the Information Group in response to a physician inquiry? It seems to me they would still be representations intended to influence the physician's prescribing practices, no matter who makes them. While it is true that Hughes J's order was intended to stop Janssen from promoting STELARA, it was also clearly intended that dermatologists could and should prescribe STELARA when medically necessary: As Hughes J said:
[66] I propose to have faith in the integrity of our medical profession in Canada. New patients may be prescribed STELARA, provided that such patient's own physician has determined that prescribing STELARA is necessary for treatment of the patient's psoriasis. I will not require that the physician sign a form or check off a box.
Presumably someone should be permitted to tell physicians that they can prescribe STELARA if necessary, but it is not clear to me how that information can be communicated, and by whom.
Labels: Contempt, Remedies
"Scintilla" Standard for Utility Applied
The Dow Chemical Co v NOVA Chemicals Corp 2014 FC 844 O'Keefe J
In this action, O'Keefe J found Dow's '705 patent related to film-grade polymers to be valid and infringed by Nova. The result turned largely on the evidence, and no novel points of law were raised. The decision does exemplify a modest approach to the construction of the promise of the patent – indeed, O'Keefe J held that there was no promise at all, and the "scintilla" standard for utility should be applied – and the treatment of the inventive concept of the patent in the context of obviousness is also of some interest.
Claim Construction and Infringement
Dow's '705 patent relates to film-grade polymers, used to make products such as plastic bags. Toughness is a desirable property of such films, and the patent taught that a blend of two different types of polymers would produce compositions with good properties. The claims were to a polymer composition, comprising a blend of homogeneously branched polymers (with specified properties) and heterogeneously branched polymers (also with specified properties).
A large part of the case is taken up with claim construction. Dow prevailed on all points. No new points of law were raised. O'Keefe J applied the established principle of claim consistency, that is, the same words are given the same meaning throughout the claims [45]. He also adopted the standard interpretation of the term "comprising," as meaning "including but not limited to" [54]. This is particularly welcome in light of the FCA's disappointing holding in Purdue Pharma 2011 FCA 132 that "comprising" does not have a standard meaning (see here).
O'Keefe J then held that Nova's product infringed. A variety of issues were raised in the infringement context, but these were all resolved either on the basis of the claim construction, or on the facts.
Turning to validity, the key question with respect to utility, not surprisingly, was the construction of the promise of the patent. While O'Keefe J's opinion does not make new law, it is noteworthy in not only construing the promise modestly, but in expressly holding that there is no promise at all, so that the "scintilla" standard is applicable.
The key phrase in the specification was [185]:
Surprisingly, we have now discovered compositions useful in films and molded parts having synergistically enhanced physical properties, which compositions comprise . . .
The question was whether this constituted a promise of "synergistically enhanced physical properties." O'Keefe held it did not. He quoted the leading FCA decision, Plavix 2013 FCA 186, but he relied particularly on Zinn J's statement in Fournier / Fenofibrate 2012 FC 741, discussed here. As O'Keefe J accurately summarized it:
[183] The Fournier case and other cases tell us that we should look for the elevated promise or claimed utility in the claims of the patent. Further, any statement found elsewhere should be taken as a mere statement of advantage unless the inventor clearly and unequivocally states that it is part of the promised utility of the invention.
O'Keefe J concluded that the statement in question was not a promise; nor was there an promise anywhere else in the patent [192]. This is significant, because the phrase in question is the kind of statement which might well have been construed as being a promise under a more aggressive approach. In my view, the the introductory word "surprisingly" makes it clear that this statement is intended to identify why the invention is non-obvious, and not to make a promise of utility. However, it should be emphasized that O'Keefe J's conclusion that the patent did not make any promise was not a matter of law. As is standard in construing the promise, extensive evidence was heard from experts, and this evidence was reviewed at length by O'Keefe J.
O'Keefe J then held that:
[195] Since I have found that the inventors did not make an explicit promise of a specific result, the test for utility will be a "mere scintilla" of utility.
This is significant, because in prior cases, even post-Plavix, which take a modest approach to the construction of the promise, the general practice has been to assess utility against a modestly construed promise, rather than expressly holding that the scintilla standard applies.
This conclusion with respect to the promise of the patent was determinative of utility, as all of NOVA's arguments that the invention lacked utility turned on its claim of an enhanced promise [197].
Overbreadth and Anticipation
Attacks based on overbreadth and anticipation were rejected largely on the facts.
One point of some interest relates to the prior art Garza patent. As noted, the 705 patent claimed a blend of homogeneously and heterogeneously branched polymers. As O'Keefe J explained
[214] The Garza patent provides the reader with a broad description of compositions and asks the reader to pick polymers from a number of broad categories to make the blend.
[215] Indeed, by making a choice of certain polymers, a person would obtain a composition that was outside the claims of the '705 Patent.
O'Keefe J held that this did not make the Garza patent anticipatory, because "the jurisprudence explicitly states that the prior patent must disclose subject matter that if performed would 'necessarily result in infringement of that patent.' In this case, you could perform the Garza patent and not arrive at the invention of the '705 Patent" [217]. This conclusion is entirely in accordance with the established jurisprudence cited by O'Keefe J, and it would not be in the least noteworthy, but for Kane J's recent holdings to the contrary (see here and here).
O'Keefe J's conclusion that the claimed invention was not obvious turned largely on the facts, and on his identification of the inventive concept:
[244] In my view, the inventive concept of the '705 Patent is that you can use the SHC [of strain hardening coefficient] characteristic of the polymer used as component A in the claims of the '705 Patent, to predict that the composition would have the desired characteristics.
This statement of the inventive concept is interesting, as it is very far from the mere paraphrase of the claims which we often see. My own view, stated in previous posts, is that it is normally necessary to look to the disclosure, and indeed to the common general knowledge, to properly identify the inventive concept. It seems that this is what O'Keefe J has done. Unfortunately, it is not clear, at least to me, how he arrived at this inventive concept. My sense is that it turned on the expert evidence (see eg [261], [269]). I would consider this to be sound, but it would have been useful if O'Keefe J had elaborated on how he had arrived at this statement of the inventive concept.
There are a couple of other points of interest. One is that while O'Keefe J adverted to the controversial (in my view) proposition that so-called secondary factors such as commercial success should be given less weight in assessing obviousness [252], he nonetheless said that "one cannot ignore"the fact that NOVA had designed the infringing product in response to Dow's patented product [252]. In my view, he was right to do so: see Secondary" Evidence of Obviousness is Not Secondary, (2012) 28 CIPR 279.
On another point, O'Keefe J held that an expert witness for NOVA, Dr Speed, has applied the wrong standard in his analysis because in response to the question as to whether the notional skilled work "has an imagination," Dr Speed replied "I expect so." [240]. O'Keefe J held this was inconsistent with the Beloit description of the "notional person" as a "technician skilled in the art but having no scintilla of inventiveness or imagination" [241]. While O'Keefe J was right as a matter of law, I have considerably sympathy for Dr Speed, who was tripped up by a conceptual problem with the standard obviousness analysis. On the one hand, it purports to be an essentially factual inquiry as to whether a person with certain characteristics – in this case at least an undergraduate degree in chemical engineering or a related field, and two years experience – would in fact have arrived at the invention without difficulty. This is nominally a factual inquiry, which turns on expert evidence. And yet, it is clear enough that no actual skilled person with an engineering degree and two years experience would be without any scintilla of imagination. Engineering, and science generally, are not fields in which automata can keep a job for two years, except perhaps as bottle washers. Dr Speed's assessment that a skilled person, as defined in this case, would have some imagination, was no doubt correct as a matter of fact, but it was not right as a matter of law – which highlights the artificiality of the inquiry.
Dow was successful in establishing that its patent was valid and infringed. O'Keefe J allowed Dow to elect between an accounting and damages [283.2], without making any comment. An accounting is discretionary, and while it was for a long time allowed routinely, some recent cases have suggested that it should not be granted as a matter of course. O'Keefe J's willingness to grant an accounting so readily may be significant, though it may simply be that the request was not opposed.
Labels: Claim Construction, False Promise, Inventive Concept, Obviousness, Promise of the Patent, Utility
Cause of Action for Class Action for Excessive Prices due to Invalid Patent
Low v Pfizer Canada Inc, 2014 BCSC 1469
There is an interesting policy question as to whether a patentee should be somehow held accountable for higher prices charged for a product that is protected by a patent which is ultimately held to be invalid. The basic argument in favour of such liability is that if the patentee can retain the excessive profits made between the time of grant and the time the patent is held invalid, it will have substantially benefited from patent protection without having delivered a new, useful and non-obvious invention which is the quid pro quo for patent exclusivity. Some form of liability for invalid patents will provide an incentive for the patentee to take care to ensure that any patents it does obtain and enforce really are valid. The basic counter-argument, as I see it, is that patent examination already provides substantial protection against the issuance of invalid patents, and liability on top of that protection would create uncertainty that would chill legitimate use of the patent system.
This question is raised in class action proceedings in Low v Pfizer. Pfizer's patent for Viagra has been held to be invalid: Pfizer v Apotex 2014 FCA 13 (here). This implies that until the patent was invalidated, and Pfizer lowered its prices to match those of the generics, the price of Viagra in Canada was higher than it would have been had the patent never been granted. The plaintiff in Low v Pfizer seeks to certify a class action against Pfizer to recover the loss to the class members due to the higher price and seeking disgorgement of Pfizer's profits under a waiver of tort theory.
The sole issue in the application was whether the plaintiff's claim discloses a cause of action for the purposes of s. 4(1)(a) of the BC Class Proceedings Act [3]. The threshold is low [54]; the test is satisfied unless, assuming all facts pleaded to be true, it is "plain and obvious" that the plaintiff's claim cannot succeed [20].
Three causes of action were pleaded [18]:
i. unlawful interference with economic relations;
ii. waiver of tort; and
iii. unjust enrichment.
Smith J held that the first and third points disclosed a cause of action for the purposes of certification, but that it is plain and obvious that a claim in waiver of tort could not succeed [72].
With respect to unlawful interference with economic relations, the SCC in Bram 2014 SCC 12, [86], held that the defendant's means are unlawful if "they support a civil action for damages or compensation by the third party, or would do so except for the fact that the third party did not suffer any loss as a result of the defendant's acts" [(quoted at [41]). Smith J held that in this case this requirement was "arguably" [44] satisfied by the patentee's potential liability to the generic under s 8 of the NOC Regulations.
Smith J pointed out that this tort has an intent element, which may be difficult to establish at trial [52]-[53]. Nor is it entirely clear that this claim will succeed as a matter of law, as there is some question as to whether the statutory cause of action will support this tort. Smith J stated that "the claim now advanced arguably falls precisely into the category of "parasitic" claims referred to in Bram" [44, my emphasis], and similarly he was "not satisfied that the requirement in Bram that there be a 'civil action' available to the third party necessarily excludes a purely statutory cause of action" [49, my emphasis]. I take this to mean the point is arguable as a matter of law.
One implication of this analysis is that this cause of action can only be raised against pharmaceutical patentees. An invalid granted patent in any field of technology can result in artificially high prices and exactly the same kind of harm to consumers that is alleged in Low, but because only pharmaceutical patentees are liable under s 8, other patentees do not face the statutory liability to third party that would allow this type of "parasitic" action. Whether or not recovery against patentees for losses caused by invalid patents is desirable from a policy perspective, as a matter of policy and principle, it is troubling that substantively the same complaint could be tortious or not depending on the field of technology. Also, the liability under this cause of action would be limited to period for which NOC liability arises, which is only the period starting when the generic is placed on "patent hold," and not the entire period for which excessive prices were charged [43]. To the extent that the policy rationale for patentee liability for invalid patents is to ensure that patentees have an incentive not to abuse the patent system, this temporal limitation on recovery, which is a direct consequence of the parasitic nature of the action, is unsound.
Smith J also held that the pleadings disclosed a cause of action in unjust enrichment. This cause of action, if established, would not be confined to pharmaceutical patentees, nor would it be limited to the period during which the generic would have been subject to a statutory stay under the NOC Regulations. Again, even though Smith J held that a cause of action was disclosed for the purposes of certification, it is not clear that this cause of action will be ultimately be sustained as a matter of law. The key issue is whether there was a "juristic reason" for the patentee's enrichment, and Smith J noted that "The fact that the defendant was operating under statutory rights or authority will usually, but not necessarily, provide a juristic reason" [80]. Whether reliance on the patent system provides an adequate juristic reason will no doubt be a central issue on the merits.
Smith J also noted that "The question of whether Pfizer's reliance on the patent provides a juristic reason may involve a fact specific inquiry into Pfizer's knowledge and intention" [84]. This will involve an investigation into the patentee's good faith and intent [84]-85].
Thus, either of the certified causes of action, if sustained as a matter of law, will lead to a fact specific inquiry into the patentee's subjective motivation and intent. From a policy perspective, this has two drawbacks. One is that the prices charged under an invalid patent are excessive regardless of the patentee's intent, and strict liability would provide a strong incentive for patentees to take care that the patents are valid. Another problem is that the fact specific nature of the inquiry means that the litigation will be expensive and protracted. On the other hand, despite these drawbacks, an intent-based approach may be necessary to prevent a chilling effect on legitimate use of the patent system.
This litigation raises a number of very difficult legal and policy problems, from the high level question of whether such liability is sound at all, to the details of how it should be implemented if it is indeed desirable. This will be interesting and important litigation.
Labels: Disgorgement of Profits from Invalid Patent, NOC Section 8, Remedies
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PULLMAN, Wash. -- A pair of Washington State University juniors and two seniors were selected in the Major League Baseball First-Year Player Draft Monday and Tuesday, according to WSU head coach Donnie Marbut.
Topping the list of Cougars drafted was junior pitcher Bryce Chamberlin (Okanogan), selected by Baltimore in the sixth round. Junior first baseman Grant Richardson (Richland) was chosen by Milwaukee in the 14th round.
Seniors drafted off this year's 29-26 Cougar club were catcher Brandon Reddinger (Kennewick) by Pittsburgh in the 20th round and pitcher Aaron Trolia (Tacoma) by Seattle in the 27th round.
Marbut did say four members of WSU's fall recruiting class were also drafted, although WSU cannot release new information on the Cougar recruits.
'It is our hope all the recruits we have signed will be on campus next fall and every indication so far is that will be the case,' he added.
Chamberlin paced WSU's mound staff with eight wins despite missing nearly a month after suffering a broken jaw in April. He worked 62.1 innings, struck out 66 batters and walked just 23 while posting an 8-3 record. In addition to 12 starts, he was used in relief three times during his late-season recovery from the injury.
Richardson has been one of WSU's top hitters the past two seasons. He hit .318 as a sophomore with 52 starts and this past spring hit .311 while starting all 55 games at first base. He led WSU with 68 RBI and had 13 home runs each of the last two seasons. His 28 career long balls is eighth on the WSU all-time list and just 12 short of the school record.
Reddinger was WSU's every-day catcher and led the Pacific-10 Conference with eight pickoffs during the 2004 season. He had his best year at the plate in three seasons, finishing with a .258 average while starting 46 games and playing in 48 contests.
Trolia led WSU's mound staff with a 4.25 ERA and finished with a 6-5 record while throwing 78.1 innings. He recorded 66 strikeouts and just 34 walks. Trolia joined WSU for the 2004 season after two years of junior college ball and one season at Clemson.
Aaron Trolia, RHP, Seattle, 22nd player taken in the 27th round, 813th overall pick.
JUNIOR (2003-04): V-letter...Games - 15...Starts - 12......IP - 62.1...ERA - 5.34...Record - 8-3...received All-Pac-10 honorable mention recognition...sustained a broken jaw April 16...returned to relief action May 10...in final appearance of the season threw six innings of scoreless, three-hit ball against California...recorded wins against Nevada, Sacramento State twice, Utah Valley State, Pepperdine, Arizona, Birmingham-Southern and California....threw 8.0 innings against Utah Valley State and 6.0 innings against Sac State, Arizona, Birmingham-Southern and California...struck out a career high 11 batters against Utah Valley State and had eight against both Washington and Arizona...WSU won each of his first eight starts...started the year as the #3 starter, then moved to the #2 slot in late March...only losses were at Washington when he allowed five runs in 4.1 innings while striking out six, and in starts against LCSC and Oregon State May 19 and May 23, respectively...WSU Rankings: ERA/5.34/5th, W/8/1st, GP/15/7th/, GS/12/3rd, CG/1/2nd, IP/62.1/4th, SO/66/3rd/, OPP BA/.279/5th...Pac-10 Rankings: Wins/7th-t...monthly pitching totals: February 14.0i/2-0/5.14, March 24.1i/3-0/4.81, April 10.1i/1-1/6.10, May 13.2i/2-2/5.93...pitching against league opponents: Arizona 6.0i/1-0/4.50, ASU dnp, California 6.0i/1-0/0.00, OSU 4.0i/0-1/6.75, Stanford dnp, UCLA 0.1i/0-0/99.00, USC dnp, Washington 9.1i/0-1/7.71.
Career Notes: ranks sixth with 138 earned runs allowed and eighth with 163 runs allowed.2004 MLB Draft: Baltimore, 8th player taken in the 6th round, 169th overall pick.
JUNIOR (2003-04): V-letter...Games - 55...Starts - 55...BA - .311...received All-Pac-10 honorable mention recognition...set school record with 506 putouts and tied for sixth on the season list with 68 RBI...longest hitting streak five games, which was snapped in the final game at Stanford after he went 8-for-20, drove home seven runs and had two hits in three consecutive games...four times has had three-game streaks, one in late March when he was 6-for-16 (.375), one in early March when he was 7-for-19 (.368)...went a perfect 4-for-4 against Oral Roberts...against Saint Mary's, went 3-for-4, scored twice and drove home four runs...hit two home runs in three games, Saint Mary's, Gonzaga and Birmingham-Southern...in a four-game week against Gonzaga and Birmingham-Southern , drove home 12 runs, hit five home runs, scored six times and was a collective 7-for-12 (.583) to earn Pacific-10 Conference and national player of the week honors (NCBWA)...at Washington in first of three Pac-10 games hit a grand slam and drove home five runs...at UCLA in the series opener collected two hits and drove home four runs...collected four hits, scored twice and hit a solo home run in the first two games against Oregon State...in season finale against California collected two hits, including his 13th home run, and drove home five runs...had two or more hits in 23 games, including four hits against Oral Roberts...droven home two or more runs in 16 games, including five at Washington and against California and four RBI four times...hit a three-run home run against Washington April 10...in eight-game stretch March 30 thru April 10 hit eight home runs, including two against both Gonzaga to start the string and then the final game against Birmingham-Southern...WSU Rankings: BA/.311/4th, At-Bats/206/2nd, Runs/33/5th, Hits/64/4th/, 2B/9/5th, HR/13/1st, RBI/68/1st, SLG%/.544/1st, BB/31/3rd, HBP/12/2nd, SF/7/1st, Chances/550/1st, Putouts/506/1st, FLD%/.993/4th...Pac-10 Rankings: RBI/1st, HR/4th, Sac Flies/2nd-t, HBP/6th, Chances/1st, Putouts/1st...here's how he hit against Pac-10 opponents: Arizona .308 (4-13), ASU .333 (3-9), California .300 (3-10), OSU .444 (4-9), Stanford .279 (3-11), UCLA .154 (2-13), USC .100 (1-10), Washington .182 (4-22)...his monthly hitting averages: February .325 (13-40), March .328 (19-58), April .333 (18-54), May .259 (14-54).
Career Notes: After three years is sixth with 919 putouts and tied for eighth with 28 home runs, 12 short of the school record.
SENIOR (2003-04): V-letter...Games - 48...Starts - 46...BA - .258... named to the CoSIDA All-District VIII academic team...selected to the All-Pac-10 academic first team...in late March had hits in four straight games, going 8-for-16 (.500) in one game against Washington and three at Arizona...went 5-for-10 against USC...against Nevada, collected three hits, drove home four runs and had two doubles...went 2-for-3, scored twice and drove home three runs in final game against Birmingham-Southern...went 2-for-2 with a triple and three RBI against USC...had two or more hits in 10 games, with three hits five times...five times drove home two or more runs, including four against Nevada and three against Birmingham-Southern and USC...WSU Rankings: Runners Picked Off/8/1st...Pac-10 Rankings: Runners Picked Off/1st-t, Chances/366/10th...here's how he hit against Pac-10 opponents: Arizona .385 (5-13), ASU .222 (2-9), California .222 (2-9), OSU .111 (1-9), Stanford .000 (0-6), UCLA .250 (2-8), USC .500 (5-10), Washington .211 (4-19)...his monthly hitting averages: February .414 (12-29), March .231 (9-39), April .244 (10-41), May .190 (8-42).
2004 MLB Draft: Pittsburgh, 11th player taken in the 20th round, 592nd overall pick.
SENIOR (2003-04): V-letter...4Games - 16...Starts - 13...IP - 78.1...ERA - 4.25...Record - 6-5...received All-Pac-10 honorable mention recognition...recorded wins in three straight starts, Saint Mary's, Texas-Pan American and Gonzaga...also beat Washington, Sacramento State and California...made six straight starts early in the season before moving to the bullpen...came back for a start against USC in the first game of the series and was in the starting rotation for the rest of the season...threw 8.0 innings in win over Sacramento State when he allowed no runs and just two hits...also had a strong 8.0 innings against Oregon State, allowing five hits and three runs in a 3-2 loss...went 7.1 innings in final outing, allowing California three runs...7.0 innings against both Northwestern and Saint Mary's early in the year, then against ASU when he allowed just six hits and two runs but didn't get the win...had six innings against Texas-Pan American, USC and UCLA, allowing just two runs against the Bruins...struck out a career-high 11 Hornets against Sac State...eight strikeouts against Saint Mary's, seven in back-to-back outings against UCLA and OSU and had five in three other games...after four strong outings in his first four starts, struggled in starts against UC Irvine and Washington, then in a relief game at Arizona...came back with three strong innings of one-hit ball against Birmingham-Southern...pressed back into a starting role after Bryce Chamberlin's injury and responded with six strong innings against USC, allowing four hits and one earned run, but no decision...also had a strong outing against ASU, but again didn't get the win...struggled at Stanford, allowing five earned runs in 4.0 innings, but came back with excellent outings against Sacramento State, UCLA, Oregon State and California, allowing eight runs over his final 29.1 innings...WSU Rankings: ERA/4.25/1st, W/6/3rd, GP/16/6th, GS/13/2nd, SV/1/3rd-t, IP/78.1/3rd, SO/66/2nd-t, OPP BA/.248/1st...Pac-10 Rankings: OPP BA/5th, ERA/9th...monthly pitching totals: February 20.0i/2-0/2.25, March 8.2i/1-2/15.58, April 16.1i/1-1/2.20, May 33.1i/2-2/3.51...pitching against league opponents: Arizona 1.2i/0-0/10.80, ASU 7.0i/0-0/2.57, California 7.1i/1-0/3.68, OSU 8.0i/0-1/3.38, Stanford 4.0i/0-1/11.25, UCLA 6.0i/0-0/3.00, USC 6.0i/0-1/1.50, Washington 0.2i/1-1/67.50.


Initially heat the traditional pan, add the lady's finger and fry it properly with out oil for atleast 2 to 3 minutes in low flame. In order to lose the sticky character of okra we do fry in this way.
Now heat the pan in high flame and add the sufficient oil. Once the oil is heated put the stove in low flame, add mustard seeds and cumin seeds for tempering.
Once the tempering is done add curry leaves, green chili and onions, try to allow them to fry for atleast 2 minutes in low flame.
After completion of two minutes, once every thing is fried and become soft, add turmeric powder and ginger garlic paste. Spread the paste evenly and nicely, the reason for adding the turmeric powder is simply because it just checks the bacteria if there are any. So allow for one or two minutes in low flame.
After completion of one or two minutes add okra pieces and sufficient salt. Mix them thoroughly so that every thing should become oily and flavor of the salt should reach the every corner of okra pieces which helps the pieces to become more tastier. Now allow for atleast 3 minutes in low flame.
So after completion of final 3 minutes making of hot and delicious okra fry will be absolutely ready for serving. This is the fry which can be used mostly for chapathis or rotis.


TELANGANA BALLADEER and Dalit rights activist Gummadi Vithal Rao, popularly known as Gaddar, met Congress president Rahul Gandhi and UPA chairperson Sonia Gandhi on Friday and expressed desire to be a "bridge" to bring secular political parties together and take on the "few fundamentalist forces" and "neo-feudal" forces in the state, indicating the BJP and the TRS, respectively.
Sources said Rahul had asked whether he would like the join the party. Gaddar's son G V Surya Kiran, who had joined the Congress in April, accompanied him.
Gaddar told Rahul and Sonia Gandhi that Telangana, the state the Congress-led UPA had created, has gone into the hands of "neo-feudals", indicating KCR and his party, the TRS.
He invited Sonia and Rahul Gandhis to a cultural event he is planning in Telangana.
Gaddar also said he will meet former Prime Minister Manmohan Singh and political leaders such as Sharad Yadav.


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Welcome to Salnikov Cup 2019! Join us from 19-22, December in St. Petersburg. Please, send your applications to info@salnikovcup.ru
I would say the biggest achievement of all was the athletic edge, the struggle for victory, the sporting atmosphere, and the drive that everyone — the athletes, the honoured guests and the spectators — all felt.
Vladimir Salnikov
President of Russian Swimming Federation
Four-time Olympic swimming champion
Programm and prize fund
General needs
«Vladimir Salnikov Cup» will take place in Saint-Petersburg on 20-21 December 2019
XIII International Salnikov Cup will take place traditionally in Saint-Petersburg at the Saint-Petersburg Swimming Center. This year few changes will take place.
Evgeniy Rylov and Sarah Koehler won the"silver sharks" of 2018 Vladimir Salnikov Cup
XII International swimming competition "Vladimir Salnikov Cup" will traditionally take place in St. Petersburg Swimming Centre on December 21-22
Veronika Andrusenko and Kliment Kolesnikov are the winners of 2017 Vladimir Salnikov Cup
XI International swimming competition Vladimir Salnikov Cup has closed in St. Petersburg today
A new world record was set in St. Petersburg
17-year-old Kliment Kolesnikov from Moscow set the new world record at 100 m backstroke – 48.90 seconds
EVGENY RYLOV AND RANOMI KROMOWIDJOJO ARE THE WINNERS OF «VLADIMIR SALNIKOV CUP» GRAND PRIX
X Jubilee Vladimir Salnikov Cup Tournament finished in Saint-Petersburg on December 17.
X INTERNATIONAL VLADIMIR SALNIKOV CUP SWIMMING TOURNAMENT
X Jubilee International Vladimir Salnikov Cup Swimming Tournament starts in St. Petersburg. The grand opening takes place on December 16 at 4:30 p. m. The Tournament is held in the "Swimming Centre", 10, Khlopina Str. for two days. The finals of the first competition day start at 5:00 p. m.
The Хth International Vladimir Salnikov Cup Swimming Competition will be held in St. Petersburg on the 16 and 17 of December.
The international swimming tournament has been gathering the strongest swimmers of Russia and the world in the city on the Neva for last 10 years - 350 participants, many of whom are prize-winners of the Olympic Games, World Championships and other prestigious competitions in this sport.
Eugene Rylov and Katinka Hossu have won the Vladimir Salnikov Cup Silver Shark
In St. Petersburg, the pre-olympic Vladimir Salnikov Cup has come to a conclusion. The Grand Prix competitions have been won by 19-year-old Eugene Rylov, competing for Moscow region, and Hungarian swimmer Katinka Hossu. In the team medal count, St. Petersburg has won with a total of 15 medals.
The IХ International Vladimir Salnikov Cup Swimming Competition will be held in St. Petersburg as per tradition on the 18 and 19 of December
The international swimming tournament has been gathering the strongest swimmers of Russia and the world in the city on the Neva - 250 participants, many of whom are prize-winners of the Olympic Games, World Championships and other prestigious competitions in this sport.
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International Vladimir Salnikov Cup Swimming Tournament
создание сайтов в петербурге


WHEN: Saturday, December 12, 7:00p.m.
This is a private event for our members and supporters.
Megan Samarin, mezzo-soprano. Megan is a second-year artist with the HGO Studio, was a finalist in HGO's 2014 Eleanor McCollum Competition Concert of Arias and is an alumna of HGO's Young Artists Vocal Academy. Last season at HGO, she sang Johanna in Sweeney Todd and Second Lady in The Magic Flute, and this September she performed Lady Columbia in HGOco's world premiere of Gregory Spears and Royce Vavrek's O Columbia.
Kirill Kuzmin, pianist and coach, HGO Studio artist (2015–16). Kirill was born in Moscow. He studied at the State Musical College in Moscow and then at the Moscow State Conservatory. After graduation, he entered the Young Artists Program of the Bolshoi Theatre of Russia, and then worked for that company as a pianist and coach on numerous productions. In 2014 and 2015, he served as an apprentice coach with San Francisco Opera's Merola Program. Kirill has appeared in recital in many of the world's most prestigious concert halls, including the Bolshoi Theatre Beethoven Hall and Carnegie Hall. This season at HGO, he coached singers in Eugene Onegin.


Bred for loyalty, strength and endurance, the easy-going and sociable Siberian Husky is a very pure and ancient breed, dating back 4,000 years or more. First bred by the Chukchis, a semi-nomadic people of northeastern Siberia, to hunt reindeer and pull sleds, the Siberian is an active breed that loves the outdoors. Prized for their great beauty, intelligence, wonderful way with children and lack of "dog smell," they are also more free-spirited (and free-ranging) than many other popular breeds, and have a reputation for stubbornness and relentlessness in pursuit of a goal.Is this breed right for you and your family? Siberian Huskies For Dummies answers this and all your questions about getting, caring for and living with a Husky. Siberian devotee—she has eight of her own—Diane Morgan gets you up and running with what you need to know to:Find and deal with reputable breedersChoose the right Husky for youHou sebreak and socialize your new puppyEducate yourself and your dogHandle behavioral problemsParticipate in competitionsIn friendly, down-to-earth language, Diane provides insights into the Siberian Husky temperament and loads of sensible, easy-to-follow advice on everything a Husky owner should know—along with fun facts and Husky trivia, amusing and informative anecdotes, and tips on how to have a great time with your Husky. Topics covered include:Understanding what makes the Siberian different from every other breedDeciding whether a male or female is right for youUnderstanding how to communicate with your Siberian HuskyTraining your Siberian HuskyGrooming your SiberianFinding and establishing a good relationship with a veterinarianBreaking bad habits in your HuskyFeeding and exercising your Siberian HuskyRecognizing, preventing and treating common health problemsGetting your Husky into sleddingThe indispensable guide for you and your Siberian Husky, Siberian Huskies For Dummies is the only book you'll need to help you have the best possible experience with this very ancient and venerable breed of dog.


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1 in every 3 Los Angeles County residents have had coronavirus, researchers estimate
Officials say new projections out next week will be telling in whether a post-holiday wave of cases will emerge.
Impeachment comes full circle for California Rep. Adam Schiff
Last year at this time, the L.A. congressman was leading an unsuccessful effort to remove Trump from office.
As dust settles on chaos in D.C., accounting begins in California
Social media amplified the fury even as those who were there, from local business owners to public officials, say they were exercising free speech rights.
Some California Republicans face reckoning after insurrection in D.C.
Some Republicans are leaving the party, even as GOP leaders say they can move forward without Trump and rebuild the conservative brand.
LA County tops 800,000 coronavirus cases as 1-month spread becomes worst period of pandemic
January 3, 2021 at 5:51 a.m.
Longtime broadcaster Larry King, 87, is among the 806,210 people who have been infected with the disease, officials said Saturday. The 87-year-old former CNN host is hospitalized at Cedars-Sinai Medical...
Trump caravan travels usual Rose Parade on Colorado Boulevard
January 2, 2021 at 12:09 p.m.
Supporters of the president wore red, white and blue and played patriotic songs
Rose Bowl parade: No flowers, floats or bands in Pasadena to start 2021 — but there's hope
With the 2021 Rose Parade canceled due to COVID-19, the morning of Jan. 1, 2021 is a morning like no other. But some folks come out to form their own...
It's over: GOP Rep. Mike Garcia defeats Christy Smith for California's 25th Congressional seat by 333 votes
December 1, 2020 at 4:10 a.m.
Rep. Mike Garcia, R-Saugus, has won a fresh term in Congress as the representative of northern Los Angeles County's 25th Congressional District after a turbulent campaign that ended in a...
With end drawing near in California's 25th Congress election, GOP Rep. Mike Garcia leads Democrat Christy Smith by 405 votes
November 28, 2020 at 5:34 a.m.
The razor-thin tally was 169,464 votes for Garcia to 169,059 for Smith, according to the California Secretary of State's Office.
Los Angeles County shutting down all in-person dining amid coronavirus surge
5-day coronavirus average tops 4,000 cases, triggering tougher rules


A woman who secretly gave birth during a flight from Samoa to Auckland, leaving her baby in the plane's toilet cubicle, is due to face two charges in the Manukau District Court this afternoon.
The baby, named Grace, was discovered by cleaning staff when the plane landed at Auckland after the flight from Apia last Thursday.
Her mother had been recovering in hospital until yesterday and today Detective Inspector Mark Gutry says the 29 year old woman has been charged with assault on a child, and abandoning a child.
Detective Inspector Mark Gutry says baby Grace is well, and is in Child Youth and Family care.


ROSS STORES RECENTLY TREATED INVESTORS to unexpectedly strong same-store results. The news hasn't stopped one insider, though, from selling shares.
On Wednesday, Ross' chief operating officer, Gary Cribb, sold 6,553 shares for just over $200,000, or $30.79 per share, according to a Securities and Exchange Commission filing last night.
Cribb's sale reduced his stake in Ross Stores by 12%. He now has beneficial ownership of 49,200 shares, including stock grants that have yet to vest.
The transaction came six days after Ross said same-store sales for the five-week period ended July 7 grew 4% versus the year-earlier timeframe. The results were well above the company's forecast of flat to 1% growth and Ross shares closed 5.8% higher to $31.83 the day of the report.
At the time, Vice Chairman, President and Chief Executive Officer Michael Balmuth said in a statement that sales benefited from "solid sell-through of seasonal merchandise."
Ross, known for its "Dress for Less" slogan, operates 840 discount stores in the U.S. and Guam.
Shares have stagnated since the same-store-sales announcement, closing at $30.99 Friday. Year-to-date, Ross has gained 6.1% versus a gain of 1.8% for the DJ U.S. Apparel Retailers Index. The stock trails the S&P 500, however, which has gained 8.2% for the year.
Ben Silverman, director of research at InsiderScore.com, calls Cribb's sale a "neutral event."
"It's a relatively small sale at a company that historically has had a decent amount of outflows by insiders," Silverman says.
Over the last two years, InsiderScore.com shows no corresponding buys by company insiders.
Still, Silverman notes, insider sales have "lightened up a little bit." He says Ross insiders sold $5 million in stock over the last six months compared with $20 million in the preceding six months.
Silverman adds that Cribb's previous sales have not been an accurate predictor of stock price.
Ross currently trades at a discount to peers, based on estimated earnings. The company has a forward price-to-earnings multiple of 16 versus 23.9 for the retail goods sector, according to Thomson Financial data.
Despite insider sentiment, Wall Street is bullish on the discount chain. Thirteen brokerage firms, on average, rate the company at Buy or its equivalent, according to Thomson Financial's First Call mean.
In a July 12 report, CL King analyst Mark Montagna maintained a Strong Buy rating for Ross Stores and a $41 price target.
"We believe Ross Stores' June performance is indicative of the benefits from a very favorable buying environment," Montagna wrote.
Here's a rundown of insider trading activity reported on July 20, 2007. An insider is any officer, director or owner of 10% or more of a class of the company's securities. The table shows purchases and sales which must be reported to the SEC and other regulators by the 10th of the month following the month of the trade, includes both open-market and private transactions involving direct and indirect holdings. Excludes stock valued at less that $2 per share, acquisitions through options and companies being acquired. Included are purchases, sales and stock registered for sale for individual officers, companies, and sectors.


Paris would not be the same without the Eiffel Tower; we identify the Little Mermaid with the port city Copenhagen; and Manneken Pis inevitably reminds us of Brussels… Such famous landmarks are also known as urban sculptures; they are characteristic symbols of a city and an essential testimony of its cultural history.
Urban sculptures highlight a city's unique identity, and can leave a strong impression on people's perception of a place. Not only do they contribute to a city's cultural landscape, but they also serve as a souvenir for future generations.
Every year since 1985, the European Union grants one European city the honourable title of "European Capital of Culture". Over the years, more than 50 cities already received this title. From 1985 to 1999, 15 cities of 13 European countries have been granted the title of "European Capital of Culture": Athens (Greece), Florence (Italy), Amsterdam (The Netherlands), Berlin (Germany), Paris (France), Glasgow (UK), Dublin (Ireland), Madrid (Spain), Antwerp (Belgium), Lisbon (Portugal), Luxembourg (Luxembourg), Copenhagen (Denmark), Salonika (Greece), Stockholm (Sweden), and Weimar (Germany).
Chinese and Italian photographers were invited to travel around those 15 "European Capitals of Culture" and take pictures of their unique landmarks. They have chosen the urban sculpture as a means to gain a better understanding of the "European Capital of Culture", since it is a remarkable artistic form popularized in European countries. This project serves as a window to enhance the dialogue between Europe and China, and develop exchanges between the cities. Through the arts of both photography and sculpture, the visitors are assured of an interesting experience.
Italian photographers Michele Stanzione, Alessandra Combatti, and Chinese photographers Zeng Yi and Zhou Yin Shuang were appointed as Special Envoy Team. They travelled around Europe during three months, and took more than ten thousands pictures of 10-15 representative sculptures. The photo exhibition showcases a selection of 50 photos, this exquisite and moving photographic work is not an objective record of the sculptures, but are the stunning reinventions based on lots of reading and reflection of historical documents.
The exhibition "The Immortals of a City" was exhibited in Beijing, Qingdao and Tianjin as well as in other places around China. Although many of the visitors had never been to Europe before, they were very appreciative of the historical, cultural and exotic nature of urban sculptures. Many visitors took pictures of the featured photographs to create a collection for themselves; many children and their parents also took part in painting workshops related to the featured urban sculptures.
Through the exhibition "The Immortals of a City", we hope that you will get an extraordinary taste of the European cities and their lifestyle, as seen through the lens of Italian and Chinese photographers.
Open Monday to Friday according to the opening hours of the Center.
The Center is closed between December 24th 2017 and January 1st 2018.