Teva Canada Ltd. v. Pfizer Canada lnc.

On May 5, 2011, the Supreme Court of Canada granted Teva Canada leave to appeal the Court of Appeal’s decision in a Patented Medicines (Notice of Compliance) Regulations proceeding involving a patent relating to the use of the compound sildenafil (Viagra). The summary on the Supreme Court’s website indicates that the issues revolve primarily around the question of the law of sufficiency of disclosure and utility.

In particular, Teva is inviting the Court to revisit its 30 year old decision on sufficiency in the Consolboard case. Currently, the law on sufficiency simply requires that a patent disclose how to make and use a claimed invention. A disclosure is not considered to be insufficient if experiments are needed to make and use the invention as long as those experiments are non-inventive. In this case, Teva appears to be arguing that a patent which discloses quintillions of compounds (but does not specifically name sildenafil (in its disclosure)) is insufficient, even though the patent claims specifically refer to sildenafil.

No date for the hearing has been set as of yet.