The Court of Appeal has dismissed Viiv Healthcare’s appeal of a Prothonotary’s decision (2014 FC 328; upheld by the Federal Court: 2014 FC 893) finding that Canadian Patent No. 2,289,753 is not eligible for listing against the combination drug KIVEXA.
The drug contains two medicinal ingredients. The ‘753 Patent relates to a novel salt of a single medicinal ingredient. Although the patent was added to the Patent Register in 2007, both Teva and Apotex brought motions under paragraph 6(5)(a) of the PM(NOC) Regulations arguing that the ’753 Patent was not eligible for listing against KIVEXA.
Even though the Minister agreed that the patent should be listed, it was found that a patent to one medicinal ingredient does not have the degree of product specificity required to be listed against a drug containing two medicinal ingredients.