Alcon Canada Inc. v. Actavis Pharma Company2015 FCA 191

Drug: moxifloxacin

The Federal Court of Appeal (FCA) issued two sets of reasons stemming from two appeals between these companies. Both appeals were from the same Federal Court decision (here, summary here). In this case, the Application Judge held that the allegations as to obviousness were justified. The FCA dismissed the appeal.

The FCA held that the patent related to a new dose for a known use of a known compound. The FCA held that as long as a judge does not misidentify or misapply the legal test, the deferential standard of palpable and overriding error applies to the analysis. Furthermore, the FCA held that if the judge’s reasons are alive to the issues, the judge is assumed to have considered all of the evidence and there is no palpable and overriding error due to a failure to reference a particular piece of evidence. The FCA held that its role was not to re-weigh evidence on appeal.