In this case, the Federal Court dismissed an application for an
order of prohibition. The patent at issue claimed pharmaceutical
formulations of esomeprazole and naproxen.
The court considered and rejected challenges to the experts of
both sides, holding that the analysis would turn on which of the
experts provided the most compelling evaluations of the common
general knowledge of the POSITA, the state of the art and the other
factors in the obviousness allegations. The court held that the
obviousness allegations were justified. There was nothing novel or
inventive about combining an NSAID and a PPI, nor the specific type
of each used in the asserted claims. Nor was the concept of
sequential release when co-formulating a PPI with a
gastroprotective drug novel. However, the Court held it was novel
to apply the sequential release profile in an NSAID-PPI
The Court held that the claimed sequential release was obvious.
Furthermore, it was obvious to try.
The Court of Appeal upheld the Federal Court's decision
denying leave to amend the Appellants' statement of claim in a
patent infringement action. The proposed amendments fell into two
categories: the addition of individuals as defendants in the action
and a claim for joint and several liability. The three individuals
sought to be added were both directors and officers of one of the
respondents or involved in the development of an allegedly
The Court of Appeal concluded that the judge did not err in law
in identifying and applying the legal principles concerning the
amendment of pleadings, or in its understanding of this Court's
decision regarding the personal liability of directors and officers
in Mentmore Manufacturing Co. v. National Merchandise Manufacturing
Co. (1978), 40 C.P.R. (2d) 164. Furthermore, the Court found that
the proposed pleading was deficient because it did not contain
material facts with sufficient specificity to establish "the
deliberate, wilful and knowing pursuit of a course of
conduct," as described in Mentmore . The Court of Appeal also
found that the judge made no reviewable error in declining the
second category of amendments. The Court noted that the material
facts, to the effect that each of the corporate defendants
infringed the patent, were not sufficient to support a claim for
joint and several liability.
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