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While the Court of Appeal held that the Federal Court erred in its identification of the inventive concept, it upheld the finding that the patent was obvious.
On April 11, the
FCA dismissed Bristol-Myers Squibb's appeal of the decision
dismissing its prohibition application against Teva for
atazanavir sulfate (Bristol-Myers Squibb's
REYATAZ): Bristol-Myers Squibb v Teva,
2017 FCA 76. While the Court of Appeal held that the Federal Court
erred in its identification of the inventive concept, it upheld the
finding that the patent was obvious. The Court of Appeal held that
the "inventive concept" was not "materially
different" from "the solution taught by the patent",
which on the facts, was "atazanavir bisulfate, a salt of
atazanavir which is pharmaceutically acceptable because it has
equal or better bioavailability than the atazanavir free
base." The FCA commented further on inventive concept in its
November 17 decision, Ciba Specialty Chemicals Water Treatments
v SNF, 2017 FCA 225.
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
advice. To obtain such advice, please communicate with our offices
directly.