Teva sent two Notices of Allegation, one in respect of 50mg
tablets and the second in respect of 150, 200, 300 and 400mg
tablets, which were addressed in separate proceedings. The Court
indicated that the construction of the claims is not contested. The
Court then held that "[w]here, as in this case, the inventive
concept of the claims is not discernible from the claims themselves
because they present a bare chemical formula, the Court is directed
to read the specification in the patent to determine the inventive
concept of the claims". After a purposive and complete reading
of the patent, the Court concluded that decreased occurrence of
dose dumping and less frequent dosing regimen are key elements of
the inventive concept.
The Court reviewed the properties of quetiapine that were known
in the prior art, as well as other general knowledge. The Court
held that the inventive concept of the invention is "a
sustained release formulation of quetiapine hemifumarate, made with
HPMC as the gelling agent and one or more excipients, with a view
to decreasing the occurrence of dose dumping and to enabling a less
frequent dosing regimen."
The Court accepted Teva's interpretation of the
"obvious to try" portion of the test for obviousness as
more or less self-evident "to conduct routine experimentation
with a fair expectation of success." The Court then considered
a number of factors such as the extent, nature and effort required
to achieve the invention, motivation and actual course of conduct.
The Court drew "an adverse inference from AstraZeneca's
failure to provide evidence" with respect to the length or
difficulty of the work conducted by the inventors, or whether the
inventors had a better knowledge base than the skilled person.
Accordingly, the Court found that it was more or less self-evident
to try to obtain a sustained release formulation of quetiapine and
that the skilled person would have had a fair expectation of
The Court held that it was not necessary to consider the
allegation of ambiguity. Costs were awarded in the middle of Column
Damages including Punitive Damages Awarded in respect of
This is a motion for summary judgment in an action for, inter
alia, trade-mark infringement. The Plaintiffs alleged sale and
offering for sale of counterfeit Harley-Davidson goods. The
Defendants denied the manufacture, sale and offer for sale of the
goods. The Court held that there is no dispute that the Plaintiffs
hold the asserted trade-marks and that the goods purchased are
The Court found that the Plaintiffs established the facts
necessary for a finding of trade-mark infringement and passing off.
The Court assessed damages based on a minimum compensatory basis.
Punitive damages were awarded "to sanction the blatant
disregard of the law by the Defendants." Solicitor-client
costs were denied but costs under Column V were awarded to address
the higher legal fees resulting from the conduct of the
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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