Both Bayer and Cobalt appealed from the Court’s judgment. Both appeals were addressed by the Court of Appeal in this decision.
The Court of Appeal began with Cobalt’s appeal and noted that the construction of the patent is to be reviewed on the basis of correctness. However, the Court of Appeal offered “certain observations for the Supreme Court of Canada to consider in a future case” relating to the standard. In particular, the Court of Appeal concluded that a correctness review may not be required for consistency and certainty in the interpretation of patents based on the doctrine of comity. The Court of Appeal noted that interpretation of the specification may be done on the basis of palpable and overriding error when done with significant reliance on expert testimony.
The Court of Appeal dismissed Cobalt’s appeal relating to construction and non-infringement of one of the patents. The Court of Appeal held that, in terms of obviousness, Cobalt was inviting the Court of Appeal to re-weigh the evidence that was reviewed by the Court, which is not the standard of review. The Court of Appeal refused the appeal relating to lack of sound prediction on the basis that Cobalt changed its submissions from what was set out in the Notice of Allegation. The Court of Appeal was required to consider sufficiency and overbreadth because the Court found it was not necessary to consider these allegations as a result of its construction. Given that the Court of Appeal applied a different construction, these allegations were considered and rejected by the Court of Appeal.
With respect to Bayer’s appeal relating to a different patent, the Court of Appeal denied the grounds of appeal relating to construction and found no reviewable error by the Court in finding the allegation of non-infringement was justified. In terms of the method of medical treatment allegations, the Court of Appeal noted that consideration of this allegation was not necessary because of the finding on non-infringement, but wrote that the current law, whereby methods of medical treatment are not patentable, should be fully considered by the Court of Appeal or the Supreme Court of Canada.