Windsor Law Professor Wissam Aoun and Law Student Caitlyn Massad Article Referenced in Supreme Court of Canada Judgment
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Authored by: Charlie J.R. Martin Windsor Law LTEC Lab Research Assistant (JD ‘28)
On July 17, 2026, the Supreme Court of Canada (SCC) released its decision in Pharmascience Inc. v. Janssen Inc, 2026 SCC 26, concerning the patentability of methods of medical treatment and dosing regimens. This decision is important for Canadian patent law as it confirms that methods of medical treatment cannot be patented in Canada. Notably, an academic article co-authored by Windsor Law Professor and LTEC Lab member Wissam Aoun and recent Windsor Law graduate Caitlyn Massad was cited by the Court.
In a 7-2 ruling, the SCC dismissed the appeal by Pharmascience Inc. (from the Federal Court of Appeal) and maintained the validity of Janssen Inc.’s patent on dosing regimens for its long-acting schizophrenia treatment. Writing for the majority, Justice Jamal held that methods of medical treatment remain unpatentable because they seek to monopolize professional medical skill and judgment. Essentially the Court ruled that methods of medical treatment cannot be patented because a physician's professional skills themselves are not patentable. The Court reaffirmed this longstanding doctrine, tracing it to decades of Canadian jurisprudence. However, the Court also concluded that Janssen Inc.’s patent did not claim a method of medical treatment and could not be invalidated on that basis.
Aoun’s and Massad’s citation appears in the concurring reasons, where the Court highlights one of the principal justifications historically offered for excluding methods of medical treatment from patent protection. That being, if doctors could be sued for patent infringement when treating patients, patent rights could interfere with the practice of medicine and potentially affect patient care.
However, as Aoun and Massad argue, this concern does not necessarily answer the question of whether an invention should receive patent protection in the first place.
Aoun and Massad argue that many of the concerns historically used to justify excluding methods of medical treatment from patent protection are more properly understood as questions of infringement and the scope of patent protection. The SCC acknowledged this distinction, noting that while concerns about physician liability are serious, it remains unclear how those concerns fit within the statutory framework of the Patent Act absent explicit legislative direction.
According to Aoun in a written statement, the project began more than seven years ago and was motivated by a perceived gap in the existing debate.
Much of the litigation surrounding methods of medical treatment has historically been driven by the competing interests of patent holders and generic pharmaceutical manufacturers. Yet, Aoun felt that the perspective of physicians often received insufficient attention.
When co-author Caitlyn Massad expressed interest in academic writing, the two began examining the issue together.
Their work ultimately sought to highlight a critical point: physicians' ability to carry out their professional obligations may be affected by patent rights even when the patented subject matter falls outside the traditional prohibition against methods of medical treatment.
Indeed, the SCC's decision may have maintained rather than eliminated the uncertainty in that regard. By ruling that Janssen's dosing regimen is patentable, the Court left open important questions regarding how similar patents may interact with physician conduct and potential infringement claims. As Aoun explained, the Court's conclusion that the dosing regimen is patentable does not resolve whether physicians who use similar patented regimens in the course of treating patients could face infringement claims, nor does it determine how such claims would interact with physicians' professional obligations. Those questions remain largely unanswered and may become the subject of future litigation. As Aoun noted, the Court specifically recognized that these questions should be left for another day.
On Aoun’s reaction to the article being referenced by the SCC, he noted rather modestly that academics are generally pleased whenever someone reads their work. Having the Supreme Court engage directly with that work, however, is an entirely different experience.
Massad offered an even more vivid reflection.
“Never in my wildest dreams would I have imagined being cited by the SCC at this stage in my career. To say it means the world to me would be an understatement” she stated.
For a young scholar, the recognition carries special significance. Reading Supreme Court decisions and seeing respected academics, judges, and mentors contributing to the evolution of the law had always represented something to aspire toward. Seeing her own scholarship join that conversation was both personally meaningful and professionally humbling.
Massad emphasized that legal scholarship plays a significant role in how the law evolves.
“This is one way that can help the law move forward,” she stated.
One of the most compelling aspects of this story is what it reveals about the role academic research plays in Canada's legal system.
As Aoun explained, legal scholarship provides a perspective that differs from the adversarial positions advanced in litigation. Scholars can explore historical development, identify overlooked assumptions, and investigate questions that litigants may have little incentive to raise.
In their article, Aoun and Massad traced the evolution of methods of medical treatment doctrine through years of legal development, bringing attention to shifts in reasoning that might otherwise remain unnoticed.
In the aftermath of Pharmascience v. Janssen, the debate surrounding the patentability of methods of medical treatment is likely to continue. And thanks in part to the work of Wissam Aoun and Caitlyn Massad, that debate is now more nuanced and more informed than before.
You can read their full article here:
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