Eli Lilly Canada Inc. v. Novopharm Limited Drug: ZYPREXA® The Court heard this patent infringement action relating to
olanzapine in 2009 and found that the patent was invalid. The Court of Appeal held that the Court erred in
finding that the conditions for a valid selection patent can be an
independent allegation of invalidity. The Court of Appeal found
that the patent at issue was not invalid for anticipation, double
patenting or obviousness, and referred the issues of utility and
sufficiency back to the Court. Upon reconsideration, the Federal Court held that there was no
demonstration of utility and no sound prediction for the promise
found by the Court. The patent contained the results of human
clinical trials on patients suffering from schizophrenia, and
information relating to olanzapine's side effect profile. The Court of Appeal dismissed the appeal, finding no error of
law or principle or any palpable and overriding error of fact. Injunction Issued to Prevent Use of Copies of Tests to
Prepare Students Canada (Attorney General) v. Rundle (Nec Plus
Ultra) This is an application in the Ontario Superior Court of Justice
for an injunction, in which the Attorney General is seeking to
prevent Rundle from continuing to use copies of the Public Service
Commission's (PSC) Second Language (French) Evaluation Test
(SLE) in her courses to prepare students for the SLE Test. The SLE
Tests were developed using taxpayer money to assess applicants for
bilingual positions with the Federal Government and are stamped
"Subject to Copyright Protection". The Attorney General established that there is a serious issue
to be tried. With respect to irreparable harm, the Court found that
the individuals taking Rundle's course that have access to
materials that are substantially the same as the official SLE Test
have an unfair advantage compared to other test takers. The Court
found that access to test questions causes the PSC irreparable harm
in that the PSC cannot ensure compliance with the Official
Languages Act. Rundle argued that her business would suffer
irreparable harm if she was not allowed to continue to use a copy
of the test to prepare her students. The Court found that this was
not the case because she never had permission to use a copy of the
SLE Tests in the first place. Finally, the Court found that the
balance of convenience favours allowing Rundle to continue to
operate her teaching business but without use of the official SLE
Test questions. Accordingly, Rundle was enjoined from copying, reproducing,
distributing, making available to the public or any clients
questions that are substantially similar to the SLE Tests. Duchesnay Inc. v. Canada (Attorney
General) Drug: DICLECTIN® This is an application for judicial review of a decision issuing
a Notice of Deficiency-Withdrawal (NOD-W) in response to a
Supplemental New Drug Submission (SNDS). The decision under review
related to the inclusion of two clinical studies. Health Canada
refused to include the studies in the Product Monograph. The Court considered a preliminary issue of whether additional
evidence could be filed before the Court. The Court refused to
allow the additional evidence, which consisted of an affidavit
attaching a transcript of an examination for discovery on the basis
that discovery is confidential. The Court held that there was no reviewable error by the
Minister of Health in rejecting the SNDS. Further, the Court held
that the Minister of Health did not commit a breach of procedural
fairness. North American Nutriceutical Inc v. Canada
(Attorney General) Drug: TherapeutxTM "Maori Miracle" Joint Health
Companion This is an application pursuant to Section 18.1(1) of the
Federal Courts Act, in which the Applicant is seeking judicial
review of a decision made by the Natural Health Products
Directorate (NHPD) refusing a product licence application. The Court first noted that the decision by the NHPD is
reviewable on a reasonableness standard but a standard of
correctness for issues of procedural fairness applies. The Court
found that the NHPD came to a reasonable finding that the evidence
relating to the safety and efficacy of one of the ingredients of
the product was deficient and there was no breach of procedural
fairness. The Court found that the NHPD continually noted its
concern with respect to the lack of information about the safety of
the ingredient in the Applicant's product. Harmony Consulting Ltd. v. G.A. Foss Transport
Ltd. This is an appeal from a decision of the Federal Court, in which the Court dismissed an
action for copyright infringement. The Court of Appeal considered
grounds of appeal relating to originality, ownership and
infringement, and dismissed the appeal. Commissioner's Decision No. 1329 This decision relates to a patent application entitled
"Viruses for the Treatment of Cellular Proliferative
Disorders". The Examiner rejected the application on the basis
of anticipation, obviousness, lack of support, and/or
indefiniteness. The Patent Appeal Board (PAB) found certain claims
to be anticipated by the cited prior art. The PAB also found a
number of claims obvious. The Examiner found that the claimed use is not soundly predicted
because there was no demonstration of the use of any of the
specific viruses recited in the proposed claims and because there
was no factual basis nor an enabling specification as undue
experimentation would have been required to practice the invention.
The PAB found that the claims are based on a properly supported
sound prediction and the disclosure was adequately enabled.
Finally, the PAB found that the person of skill in the art
"would have no difficulty understanding and predicting what
modified viruses fall with the scope of the proposed claims and
thus, the proposed claims are definite and comply with subsection
27(4) of the Patent Act." The Commissioner of Patents concurred with the recommendations
of the PAB that certain amendments be made to the remaining claims
and the application issued. CIPO has posted an Update re Amazon.com, indicating that it is
still reviewing the feedback from the consultation period for its
Practice Notice and will provide a further update at the beginning
of October 2012. The Competition Bureau announced that it has released its final
Enforcement Guidelines on the Abuse of Dominance
Provisions (Sections 78 and 79 of the Competition Act). The
updated guidelines are now available on the Bureau's
website. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
and
Beverley Moore
Actions
Appeal Relating to Olanzapine Patent
Dismissed
Other Cases of Interest
No Reviewable Error in Rejection of SNDS
Court Holds Reasonable Finding Relating to Safety and
Efficacy of Ingredient
Dismissal of Copyright Infringement Action for Computer
Programs Dismissed
Patent Appeal Board Finds Sound Prediction and Definite
Claims
Other Industry News
Canada: Appeal Relating To Olanzapine Patent Dismissed (Intellectual Property Weekly Abstracts Bulletin: Week Of September 24, 2012)
Last Updated: September 27 2012
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