First tier in all areas of prosecution and litigation, Smart & Biggar/ Fetherstonhaugh once again dominates the IP market alongside competitor Gowlings. The firm, one of the oldest and largest in the country, has had a number of patent victories in the past year, among them the much-cited Amazon.com Inc v Commissioner of Patents. "It's a fairly significant decision," said a competitor. "If affirmed, business method patents are now back in vogue." Steven Garland, Colin Ingram and John Morrissey represented Amazon.
The firm also prevailed on behalf of Bauer Hockey and Nike in a patent infringement dispute involving issues of anticipation, obviousness and lack of utility. The Federal Court found Easton Sports Canada had infringed the companies' skate-boot patent by selling more than 30 models of the skate. Additionally, the court held Easton had induced and procured its outsource manufacturer to infringe the patent.
Competitors lauded patent litigator Gunars Gaikis for his representation of brand pharmaceutical companies. "We're opposite the firm quite a bit," one said. "It has some really tough counsel." Gaikis successfully represented Syntex Pharmaceuticals International and Hoffman-LaRoche before the Federal Court of Appeal, which affirmed the trial court's finding that Roche was not liable to Apotex for damages under the 1998 Section 8 amendments of the PM(NOC). It was the first Court of Appeal decision interpreting the original and amended versions.
While Smart & Biggar's patent contentious practice received much acclaim, its patent prosecution group also earned high marks. A client said the firm is meticulous with filings, unlike competitors of similar size: "Smart & Biggar is my first choice to work with." Of the trade mark group, Brian Isaac excels. "They run a very good shop," said a peer. "That's where I send conflicts often."