Merits of 55.2 Decisions; 2009 FC 146; escitalopram; February 25, 2009

The Court granted prohibition in respect of each of the proceedings against each defendant. The patent at issue related to an enantiomer of citalopram.

The generic companies alleged anticipation, obviousness, ambiguity, a lack of sound prediction, inutility and insufficiency. All allegations were found to be not justified.

The Court held that the patent at issue was not a selection patent as it did not have surprising activity over the genus. The Court then considered the law of Sanofi and found that the patent was neither anticipated nor obvious. However, the Court indicated that if it was wrong in deciding that the '452 patent is not a selection patent, it was an invalid selection patent.

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