The Federal Court of Appeal dismissed the generic company's appeal of a decision granting prohibition. The patent had expired, and subsequently a NOC issued before the appeal was heard, thus the appeal was moot. However, the Court allowed the appeal to continue because its outcome could affect the rights of the generic company under s. 8 of the PMNOC Regulations .
The Court undertook a determination de novo , of a question of obviousness not considered by the trial judge. The Court accepted the evidence of the innovator as persuasive on the issue, and found the patent not to be invalid on the basis of obviousness. The Court did hold that the trial judge gave undue weight to the commercial success and utility of the medicine on the issue of obviousness. However, the issue was not consequential.
The full text of the decision can be found at: