An International Guide to
Patent Case Management for Judges

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12.10.2 Appeals in cassation

Appeals in cassation125 must be grounded on a breach of procedural or substantive provisions considered “appealable in cassation”, a concept that is central to this class of appeals.

A judgment is deemed “appealable in cassation” when it:

  • is contrary to Supreme Court jurisprudence;

  • concerns matters on which Provincial Court rulings have been contradictory; or

  • applies provisions on which Supreme Court jurisprudence has not been established.

Judgments may also be appealable in cassation “as a matter of public interest”. This is where the challenged judgment comes in a case where the matter in dispute is one of general interest as a matter of uniform interpretation of the law. General interest is deemed to exist when the matter potentially or actually affects a great number of situations, either in itself or because it transcends the case in question.

The application initiating the appeal needs to clearly identify and demonstrate how the judgment is appealable in cassation based on one of the three premises above. The breach challenged must also have been relevant to the judgment being appealed and duly raised during the trial or considered by the Provincial Court.

When the appeal is based on a breach of procedural rules, it is essential to show that:

  • objections to the breach, if possible, were raised in a lower court prior to the appeal in cassation; and

  • if raised in the first instance, the objection was raised again in the second instance. If the procedural breach consisted of a curable flaw, a remedy must have been sought in the appropriate instance or instances.

The purpose of appeals in cassation is to ensure the correct application of law, not to serve as a “third instance”. The assessment of evidence and establishment of facts may not be called into question at this stage, unless a clear and immediately verifiable error has been committed based on the prior proceedings.

Appeals in cassation are decided by judgments that definitively resolve the matters in dispute. However, if an appeal argues that a challenged lower court judgment was contrary to existing jurisprudence on the matter or matters at issue, it may be resolved by an order quashing the judgment and remanding the case to the lower court for a new judgment consistent with the jurisprudence concerned.