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Appeals - Argument Below in Appeal Record. Pharmascience Inc. v. Janssen Inc.
In Pharmascience Inc. v. Janssen Inc. (Fed CA, 2023) the Federal Court of Appeal allowed 'argument' (legal submissions) from the trial court below to be included in a party's appeal materials, which is unusual:[13] Turning to the merits of Janssen’s position, while Pharmascience is correct in asserting that, generally speaking, the materials before this Court on an appeal should be limited to those that were before the court below and normally should not include the parties’ arguments, additional materials may be put before this Court where "“[…] the opposing party has a reasonable basis for believing that it may wish to rely on [them] to support one of its argument on appeal”" as Justice Sharlow noted in Bojangles' International, LLC v. Bojangles Café Ltd., 2006 FCA 291 at para. 6, 55 C.P.R. (4th) 192. Further, where they are relevant to an issue on appeal, the arguments before the court below may be placed before this Court in the appeal: McBride v. Canada (National Defence), 2008 FCA 111 at paras. 3–4, 166 A.C.W.S. (3d) 7.
[14] I have determined that circumstances exist here that would allow for the filing of all but one of the materials that Janssen seeks to include. The issue of the proper construction of certain claims in the patent in suit arises in this appeal in light of the issues outlined by Pharmascience in its Notice of Appeal. This Court should know if Pharmascience is taking inconsistent positions on construction.
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