In a proceeding under the NOC Regulations, the
Court dismissed the proceeding on the basis that it had concluded
that the relevant claims constitute unpatentable subject matter.
The Court held that it did not need to address the other
substantive issues raised in the NOA.
The patent claims a dosing regime with a titration schedule
starting with a dose of 8mg/day, working up to 16mg and then 24mg
The Court considered a number of previous cases and held that a
patent claim over a method of medical treatment, covers an area for
which a physician's skill or judgment is expected to be
exercised. This includes administration of a drug where a
physician, while relying on the dosage advice of the patentee,
would be expected to be alert and responsive to a patient's
profile and to the patient's reaction to the compound. The
Court held that by attempting to monopolize an effective titration
regime for galantamine, the patent interferes with the ability of
physicians to exercise their judgment in the administration of the
drug. The Court also held that this is because, in theory, any
physician who attempted to prescribe the drug to a patient in the
manner claimed by the patent would infringe the patent.
The Court also considered the argument that the rationale of
excluding methods of medical treatment from patentable subject
matter should be revisited in light of the repeal of s.41 of the
old Patent Act. The Court held that this exclusion remains
good law in Canada because of public policy concerns. The rationale
for excluding such patents is that, for ethical and public health
reasons, physicians should not be prevented or restricted from
applying their best skill and judgment for fear of infringing a
patent covering a pure form of medical treatment, as distinct from
a vendible medical or pharmaceutical product.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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