[2015] 4 F.C.R. D-1
Patents
Infringement
Appeals from Federal Court (F.C.) decision (2013 FC 1061) regarding Bayer Inc. and Bayer Pharma Aktiengesellschaft’s (Bayer) application under Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (NOC Regulations) to prohibit Minister of Health from issuing notice of compliance (NOC) to Cobalt Pharmaceuticals Company (Cobalt) concerning Cobalt’s proposed drospirenone, ethinylestradiol combination product until expiry of each of Canadian Patent Nos. 2382426 ('426 patent), 2179728 ('728 patent)—Cobalt issuing notices of allegation alleging, inter alia, invalidity of patents on basis of obviousness, lack of utility—Bayer distributor of birth control tablets under brand name YAZ—Cobalt intending to distribute generic version of YAZ—F.C. granting Bayer’s application concerning '426 patent (Cobalt appealing in A-376-13)—Dismissing Bayer’s application concerning '728 patent (Bayer appealing in A-385-13)—F.C’s construction of patent to be reviewed on basis of correctness—This view said to stem from fact issued letters patent “regulation” under Interpretation Act, R.S.C., 1985, c. I-21, s. 2(1)—However, in process of interpretation, patents to be read through eyes of the skilled reader—As such interpretation not within purview of judge, parties almost always adducing expert evidence to explain how skilled reader would read, understand patent—F.C.’s assessment of expert evidence reviewable for palpable, overriding error—Above-mentioned law applied herein—However, following obiter comments made—In formal sense, patent a “law” under Interpretation Act—However, wrong to assume such formal designation determining standard of review issue—Correctness review not required for consistency, certainty in interpretation of patents—Doctrine of comity ensuring sufficient consistency, certainty in meaning of patents, just as it ensures consistency, certainty under current approach to standard of review—Distinction between “letters patent”, patent specifications—“Letters patent” under Interpretation Act including only certificate bearing seal of Canadian Intellectual Property Office issued to inventor upon approval of application—Patent application instead becoming patent specification, not to be considered “letters patent” under Interpretation Act—Distinction having practical effect that only “letters patent” reviewed for correctness—Interpretations of specification then reviewed on basis of palpable, overriding error when dependent on expert testimony—Specification remaining legal document, but even legal documents subject to review on deferential standard—Regarding appeal in A-376-13, Cobalt not establishing reviewable errors in F.C.’s decision relating to claim construction, obviousness, or lack of utility for lack of sound prediction—F.C. not prevented from issuing prohibition order pending expiry of '426 patent despite not having considered insufficiency, overbreadth—As to appeal in A-385-13, no errors in F.C.’s finding regarding construction of claims of '728 patent, F.C. making no reviewable error in concluding that Cobalt’s allegation of non-infringement justified—Appeals dismissed.
Cobalt Pharmaceuticals Company v. Bayer Inc. (A-376-13, A-385-13, 2015 FCA 116, Stratas and Pelletier JJ.A., judgment dated May 4, 2015, 33 pp.)