Deferasirox – Canada

Deferasirox – Canada

On Sep 15, 2016, The Federal Court of Appeal (Canada) dismissed an appeal from a decision prohibiting the Minister of Health from issuing a Notice of Compliance to Teva for EXJADE®.

On appeal, the Court of Appeal characterized the sole issue as whether the trial judge had erred in law in its construction of the promise of the relevant patent. Teva acknowledged that the trial judge had correctly identified the principles of law relevant to the utility requirement but erred in the construction of the promise of the patent.

The FCA concluded that the trial judge’s construction of the promise of the patent was consistent with differentiation contained in the disclosure and the claims. The Court of Appeal also reiterated that where an allegation of an unfulfilled promise is made, “the patent will be construed in favour of the patentee where it can reasonably be read by the skilled person as excluding this promise”. Thus, the trial judge was correct to differentiate between the compounds and use claims. 
The FCA finally concluded that Teva’s allegations of inutility, obviousness and insufficiency were not justified & dismissed the appeal.
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