Eli Lilly Canada Inc. et al. v. Mylan Pharmaceuticals ULC et al., 2015 FCA 286 

Drug: tadalafil

The Court of Appeal has dismissed the appeal of a dismissal of an application pursuant to thePM(NOC) Regulations that had found Mylan's allegations of invalidity to be justified.

The Court of Appeal held that the correct test for obviousness, and the test that ought to be applied by the Federal Court, is that articulated by the Supreme Court of Canada in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61, [2008] 3 S.C.R. 265, at paragraph 66: "For a finding that an invention was ‘obvious to try', there must be evidence to convince a judge on a balance of probabilities that it was more or less self-evident to try to obtain the invention. Mere possibility that something might turn up is not enough."