Canadian Lawyer InHouse

the U.S. (for growing crops from a seed using a patented gene) on the grounds of patent infringement. In May 2004, the Canadian Supreme Court ruled that by cultivating a plant containing the patented gene and com- posed of the patented cells without license, the patentee was deprived of the full enjoyment of the patent. If there's any commercial benefit to be gleaned from the possession of patent subject matter, the question comes down to whether the patentee is being deprived in some way, says Beaubien. The courts will look at the importance of the process: If it contains all or part of a patented product, particularly if you can identify it, there is a strong case for infringement. If a company outsources the pro- duction or parts of their production, it needs to consider the implications of the Saccharin doctrine. While they may be STEER YOUR CLIENTS WISELY ON A DECISION TO TERMINATE NEW PUBLICATION YOU'RE FIRED! JUST CAUSE FOR DISMISSAL IN CANADA STUART E. RUDNER Under what circumstances can an employer terminate an employee for cause? Gain a clear understanding of the types of behaviours that can constitute just cause for dismissal in You're Fired! Just Cause for Dismissal in Canada. This practical and easy-to-read new reference tool combines a thorough review of the law with a searchable CD-ROM of case summaries. When considering an employee's particular circumstance, you can quickly refer to previously considered allegations of just cause for dismissal. EXPERIENCE THE BENEFITS If you are involved in the discipline and dismissal of workers, you will find a wealth of expert commentary and practical guidance in this new title. It will help you: • Understand what is – and what isn't – just cause for dismissal • See how the courts have treated comparable or similar cases • Understand the requirements for conducting investigations prior to dismissal • Avoid breaching human rights legislation • Update company policies and procedures regarding discipline and dismissal to limit potential liability free and clear in India or Italy, they may not be free and clear in Canada. The Apotex case Another high-profile case with implica- tions for Canadian manufacturers is Eli Lilly and Co., which alleged infringement by Apotex Inc. of eight patents covering processes and intermediaries in the manu- facture of the antibiotic cefaclor. The alle- gations were made over the sale of the drug in Canada, which was manufactured from bulk cefaclor purchased from third parties in India and Korea. In 2009, Apotex was found to have infringed upon at least one claim for eight patents. The court's affirmation of the Saccharin doctrine is significant to patentees par- ticularly in the pharmaceutical industry, since generic bulk pharmaceuticals are often manufactured in foreign jurisdic- tions, says Colin Ingram, partner with Smart & Biggar/Fetherstonhaugh. So the Saccharin doctrine, to a limited extent, reaches beyond Canadian borders. "It's an important extension of Canadian patent law," he says. "Apotex took a really hard run at the doctrine and said it's ill- founded," he added, but the courts "sug- gest it does apply." India, Korea, and China have a thriv- ORDER # 982890-65199 $225 2 volume looseleaf supplemented book + CD-ROM November 2011 Anticipated upkeep cost – $116 per supplement 1-2 supplements per year Supplements invoiced separately 978-0-7798-2890-6 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. ing manufacturing business with cheap labour and weak IP protection. It's easy to set up manufacturing facilities in those countries and sell wares to companies such as Apotex, which then sell their products into other markets. "The take- away is that you may very well be able to buy something somewhere and legally manufacture it because there aren't pat- ent rights existing there, but sales of the ultimate product in Canada may still be in violation of Canadian patent law because of the Saccharin doctrine and its applica- tion," says Ingram. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 What in-house can do Whenever Canadian manufacturers purchase supplies offshore they could potentially run into a problem, and unfortunately, protection against pat- ent infringement can be an expensive proposition. One of the challenges is how much searching should be done: There are hundreds of thousands of patents to sift through (and even more in the U.S.). 32 • APRIL 2012 INHOUSE

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