PM(NOC) Application Decisions
Patent is not found to be a selection patent, and thus was anticipated and obvious
Amgen Canada Inc. v. Mylan Pharmaceuticals ULC, 2015 FC 1244
Drug: cinacalcet hydrochloride
The Federal Court has dismissed an application for prohibition to
prevent the Minister of Health from issuing an NOC to Mylan for
cinacalcet hydrochloride.
The '879 Patent was described to claim trillions of
calcimimetic compounds defined by two separate genera. At issue was
a single claim that specifically claims the compound cinacalcet and
its pharmaceutically acceptable salts. It was alleged that the
single claim was anticipated, obvious or double
patented.
The '879 Patent was claimed to be a selection patent over the
'828 Patent, and the patentee conceded that cinacalcet was
disclosed in the prior art. The Court found that calling the
'879 Patent a selection patent was a retroactive
characterization to save cinacalcet.
In construing the single claim, the Court referred to the patent
as a whole, and noted that the claim does not include a specific
use, the patent does not promise a particular level of activity for
cinacalcet, and other compounds are evidently more active such that
one is not drawn, at least by implication, to cinacalcet as having
outstanding, unexpected features. The Court further noted that
cinacalcet was not synthesised and tested until after the claim
date, and cinacalcet was not focused on until after the original
lead compound showed toxicity issues. Ultimately the Court held
that there was no substantial and unexpected advantage, and no
advantage was even described in the Patent, therefore this was not
considered to be a selection patent.
Following the finding that this was not a selection patent, the
Court held the patent to be anticipated and obvious.
Upcoming SCC Decision
The Supreme Court decision in Canadian Broadcasting Corporation / Société Radio-Canada v. SODRAC 2003 Inc. et al. (35918) is expected this Thursday, November 26, 2015. This is an appeal from Canadian Broadcasting Corporation v. Sodrac 2003 Inc., 2014 FCA 84, which we originally summarized in our weekly bulletin of April 8, 2014.
Other Industry News
Health Canada has published an Update: Implementation of Plain Language Revisions
to Part III: Patient Medication Information and Associated
Templates of the Guidance Document: Product Monograph.
Recent BLG Publications
Translation nation: What's in store for
commercialization grants at the Canadian Institutes of Health
Records?, The Scientist, Kathleen Marsman (Ottawa) | Co-author
Canadian Trademark Law: Is it Impacted by the Trans-Pacific
Partnership Agreement, BLG Intellectual Property
Bulletin, Tracey Mosley
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