[2012] 1 F.C.R. D-4
Patents
Infringement
Appeal from Federal Court decision (2010 FC 447) granting Pfizer, Pharmacia Atkiebolag (together Pfizer) order prohibit-ing Minister of Health from issuing notice of compliance to Apotex Inc. pursuant to Food and Drug Regulations, C.R.C., c. 870, s. C.08.004 until expiry of Canadian Patent No. 1339132 ('132 patent) in 2014—'132 patent claiming latanoprost compound used to treat glaucoma, ocular hypertension—Apotex claiming '132 patent based on prediction of chronic treatment rather than demonstrated utility, that gap existing between factual basis, patent’s promise—Federal Court dimissing Apotex’ “chronic use” construction, dismissing ensuing argument that patent unsound—Promise of '132 patent in fact constituting chronic use of compound for chronic medical condition—Evidence showing utility of '132 patent based on prediction rather than demonstra-tion of utility—Doctrine of sound prediction seeking to balance two competing public interests—Patent’s factual basis, evidence as whole leading to conclusion '132 patent failing to meet requirements for sound prediction—Federal Court misconstruing promise of '132 patent by finding promise of patent not including chronic treatment; resulting in failure to consider whether promised utility soundly predicted—Had Federal Court properly construed '132 patent as including chronic treatment, would have found patent invalid for failing to make sound prediction of utility—Appeal allowed.
Pfizer Canada Inc. v. Canada (Health) (A-206-10, 2011 FCA 236, Trudel J.A., judgment dated August 16, 2011, 22 pp.)