The Supreme Court of Canada has today
granted AstraZeneca leave to appeal a Federal Court of Appeal
decision, affirming a trial decision invalidating its patent
relating to its successful esomeprazole drug
(NEXIUM) for lack of utility.
The patent utility requirement in Canada has been the subject of
controversy and debate. The appeal will present the Supreme
Court with an opportunity to consider whether a promised utility
doctrine properly exists, and the correct applicable standard for
patent utility in Canada.
In AstraZeneca Canada Inc v Apotex Inc,
2014 FC 638, the trial judge found AstraZeneca's Canadian
2,139,653 claims novel and unobvious, and if valid would have
been infringed by Apotex's sale of its generic esomeprazole
drug. The trial judge, however, found a "promise"
of improved therapeutic profile, unmet at the filing date, to be
"fatal" and held the patent invalid. The Federal
Court of Appeal affirmed in
2015 FCA 158.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
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