[2013] 4 F.C.R. D-3
Patents
Infringement
Application for order prohibiting Minister of Health from issuing notice of compliance to respondents (Cobalt) for generic version of oral contraceptive YASMIN containing drospirenone, compound claimed in Bayer’s Canadian Patent No. 2261137 ('137 patent)—Principal issue whether Cobalt’s product would infringe '137 patent—Only claim in issue Claim 13 addressing “product prepared according to the process of Claim 12”—Bayer maintaining Claim 13 pure product claim to be read as if words “prepared according to the process of Claim 12” not there—That construction not correct in law or consistent with how skilled person would read Claim 13—Claim 13 incorporating patented process for making drospirenone—New process for making old compound not justifying new patent for same compound—Claim 13 clearly, expressly incorporating process described in Claim 12—Bayer contending that if Claim 13 construed as containing process of Claim 12, then process of Claim 12 not to be read as including oxidation in presence of ruthenium salt—“Key reaction” of invention oxidation in the absence of chromium trioxide—Only metal salts mentioned in patent as being suitable alternatives to chromium ruthenium salts—Ruthenium salts specifically included in claims 1, 5, 6 and 11—In light of conclusion Claim 13 incorporating process for making drospirenone set out in '137 patent, including key oxidation reaction with ruthenium salt, Bayer failing to show Cobalt’s allegation of non-infringement unjustified—Claim 13 of '137 patent addressing product made by three-step process set out in patent, essential element of which being oxidation in presence of ruthenium salt—This essential operation is not part of Cobalt’s process—Application dismissed.
Bayer Inc. v. Cobalt Pharmaceuticals Company (T-1044-11, 2013 FC 573, O’Reilly J., judgment dated May 29, 2013, 13 pp.)