In reasons dated February 26, 2015, Justice Barnes dismissed
Janssen's application for an order prohibiting the Minister of
Health from issuing a Notice of Compliance to Teva for the compound
bortezomib until the expiry of Canadian Letters Patent 2,203,936
(the '936 Patent). The '936 Patent relates to bortezomib
and its use to treat cancer.
The fatal finding for the '936 Patent was its
characterization by the Court as a selection patent. Justice Barnes
held that bortezomib falls within a genus of compounds claimed by
an earlier patent, all of which are said to be highly potent in the
treatment of cancer. He explained that although a compound falling
within a previously claimed genus may be reclaimed as a valid
selection, it must not have been made previously and must possess a
special property of an unexpected character from those comprising
Justice Barnes dismissed the opinion of Janssen's expert
that, notwithstanding the teachings of the prior patent, the person
of skill continued to face challenges in connection with the
assembly of the bortezomib molecule. He noted that:
"[T]he 904 Patent provided the person of skill with a clear
roadmap to bortezomib. Although choices were still required to be
made for all of the elements identified by Dr. Wuest, those choices
were rendered obvious by the teaching of the 904 Patent. [...] A
person of skill is not doing anything inventive when he chooses
options provided in a prior patent to build a molecule that he
expects will work."
Further, Justice Barnes held that the inventive concept of the
'936 Patent does not incorporate any enhanced aspects of
potency or selectivity nor does it assert any such relative
"The 936 Patent claims bortezomib for the same use.
Bortezomib does not possess "a special property of an
unexpected character" or "a substantial advantage over
the genus from which it was selected"[.] Indeed, even as among
the other compounds that bortezomib is compared with, it does not
appear to offer any particular advantage."
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This appeal relates to two generic drug submissions for two different products: exemestane and infliximab. Both submissions cross-referenced the submission of another generic company that had received a Notice of Compliance.
Two recent decisions from the Supreme Court of Canada directly affect Quebec's farm businesses by confirming La Financière Agricole du Québec's discretion in the administration of the farm income stabilization program...
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