In reasons dated June 3, 2015, the Federal Court of Appeal (FCA)
affirmed a decision of Justice O'Reilly (2014 FC 567)
dismissing Apotex's allegations relating to a patent covering
Allergan's LUMIGAN RC®. The FCA confirmed Justice
O'Reilly's findings that Apotex's allegations of
anticipation, obviousness and lack of utility were unjustified.
The most interesting passage in the FCA's decision is with
respect to Apotex's utility allegation. Apotex argued that
there was not proper disclosure of the line of reasoning because it
was not explicitly stated in the patent. The lower court judge had
indicated that the line of reasoning was "implicit in the data
itself and would be apparent to the skilled reader", and thus
any requirement for the disclosure of the factual basis and line of
reasoning was met. The FCA affirmed the lower court judge's
decision, holding that the line of reasoning and factual basis do
not need to be explicitly disclosed when they would be
"self-evident" to the skilled person.
The FCA relied on its decision in
Eurocopter1 in making this finding. The
Court in Eurocopter found that the factual basis and line of
reasoning do not need to be disclosed if they can be found in
accepted scientific laws or principles, or in information that
forms part of the skilled person's common general
Regarding the obviousness and anticipation arguments made by
Apotex, the FCA found that Apotex had not established that the
lower court judge made a palpable and overriding error. In
particular, for obviousness, Apotex argued that the judge failed to
explain why he relied on one version of conflicting evidence over
the other. Relying on Housen2, the FCA
noted that it was entitled to presume that the lower court judge
reviewed all of the evidence, and thus that "reliance on the
evidence of some witnesses over others cannot by itself demonstrate
that the Judge forgot, ignored or misconceived the evidence in a
manner that affected his conclusion".
A copy of the FCA's decision (2015 FCA 137) can be found
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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.
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