Last week, the Federal Court of Appeal issued its decision (authored by Stratas J.A.) dismissing with costs all four appeals (three interlocutory orders and a summary judgment decision) brought by ViiV Healthcare in relation to its patent infringement action against Gilead Sciences Canada, Inc. for its HIV drug bictegravir. The decision offers guidance to parties bringing or responding to motions for summary judgment or summary trial in the Federal Courts, and confirms that summary disposition remains possible in patent litigation.
ViiV and its co-plaintiff Shionogi, own a patent covering several classes of chemical compounds in the HIV integrase inhibitory activity space. Believing that Gilead’s bictegravir compound infringed that patent, ViiV brought a patent infringement action against Gilead. Gilead counterclaimed that ViiV’s patent was invalid. Eighteen months into the action, Gilead brought a motion for summary trial on the issue of patent infringement, which was scheduled to be heard in January 2020. Although ViiV objected to Gilead’s motion and said it would bring a motion to quash or adjourn the summary trial motion, it did not do so until December 2019, a month before the summary trial.
The Federal Court dismissed the motion to quash or adjourn, noting that it had been brought “very late”, and allowed the motion for summary trial to proceed. The Court said it would rule on the appropriateness of summary judgment at the summary trial itself, and ultimately granted it. Along the way, the Court dismissed two other interlocutory motions brought by ViiV relating to compelling production of certain documents and a hearsay objection to the admission of the product monograph for bictegravir. These dismissals were upheld by the Federal Court of Appeal.
The Federal Court of Appeal Clarifies Methodology for Summary Judgment/Summary Trial Motions
The Court of Appeal took this opportunity to clarify the methodology the Court is to follow when a motion for summary judgment or summary trial is brought. The Court observed that some decisions suggest the Court can consider first whether the motion should be entertained at all and decide itself whether to dismiss it right away, while others suggest a motion to quash or adjourn the motion can be brought by a party, while yet others suggest motions to quash should not be brought, and some decisions do not consider the issue at all unless a party raises it. The Court of Appeal observed that part of the confusion arises from judges and counsel addressing whether a summary judgment motion or summary trial is “appropriate” in a given proceeding, which means different things to different judges.
After considering the operative principles for practical questions of procedure and practice before the Federal Courts, the Court of Appeal noted that in rare circumstances motions to quash or to adjourn a motion can be brought, because when brought early and heard quickly, they can stop “harmful litigation conduct in its tracks”. Absent such a motion, the Court itself can invite submissions from the parties and then decide whether a motion should be entertained at all or be adjourned. In addition, the Court has wide discretion provided by the Federal Courts Rules (which are to be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits), allowing it to schedule and decide the manner in which the motion is to be prosecuted, defended, and argued. The Court of Appeal therefore observed that the Federal Court’s suggestion it had no authority to consider preliminary motions to quash motions for summary judgment or summary trial was incorrect.
Summary Judgment/Trial was Appropriate in ViiV’s Case
Of ViiV’s appeal, the Court of Appeal noted ViiV had not identified an extricable legal question on which the Federal Court erred nor demonstrated any reversible error on the part of the Federal Court. Rather, ViiV sought to have the Court of Appeal re-weigh the matter and come to a different conclusion, which is not the task of the Court of Appeal.
On claim construction, the Court of Appeal disagreed with ViiV that referring to the patent disclosure for claim construction was an error, holding it is trite law that a patent is to be read contextually in light of the entire patent and all of the necessary expert evidence. Despite the Federal Court having used the words “clear and unambiguous” to describe the claims, the Court of Appeal observed that reading the whole paragraph - and not just once sentence in it - showed the trial Court found it necessary to go beyond the terms of the claims for construction, and that the trial Court correctly understood the role of disclosure in claim construction. Where some piece of context (in this case biology/virology evidence) does not assist with construction, the Court need not consider it. In addition, the Court found it telling that ViiV did not refer to its own biology/virology evidence at all on the appeal, instead pointing only to the lack of such evidence from Gilead.
Ultimately, ViiV did not show that the Federal Court had made any palpable and overriding error (e.g., obviously illogical findings, findings that are not supported by the record, or a complete disregard of evidence). Of ViiV’s argument that if bictegravir does not fall within the scope of the claims at issue it still infringes because it is a variation of a non-essential element of the patent, the Court of Appeal noted that during the summary trial ViiV had conceded that the applicable element is essential. In trying to limit this concession, the Court of Appeal concluded that ViiV was “attempting to resile from the breadth of its concession in the Federal Court”, which it could not do. The Court of Appeal held the attempt “smacks of the ‘spirit of the invention’ approach to patent infringement”, a discredited approach that allowed patent holders to “get two kicks at the can” by letting them first try and prove literal infringement, and if unsuccessful, allowing them to try to show infringement “in spirit” – which was rejected by the Supreme Court due to its uncertainty and unpredictability. ViiV’s appeal of the summary judgment was therefore also dismissed. At this time, it is unknown if ViiV will seek leave to appeal to the Supreme Court of Canada.