Apotex recently sought to raise new grounds of patent invalidity in the Federal Court – premised on overpromising under insufficiency, wilful misleading and overbreadth – following the Supreme Court of Canada's decisions which had:
- held that AstraZeneca's patent relating to esomeprazole (Nexium) was not invalid for inutility (for further details please see "Promise doctrine struck down and AstraZeneca's NEXIUM patent upheld as useful"); and
- dismissed Apotex's post-judgment motion for reconsideration and rehearing (for further details please see "AstraZeneca and overpromising on grounds other than utility").
Justice Locke dismissed Apotex's motion.(1) As such, the validity of the patent was finally decided, with any doubt about the Supreme Court of Canada's intent resolved by the dismissal. Locke also held that AstraZeneca was entitled to a declaration of infringement and ordered the quantification of AstraZeneca's damages or Apotex's profits. Apotex has appealed.
For further information on this topic please contact Lynn Ing at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (email@example.com). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
(1) AstraZeneca v Apotex, 2018 FC 185.
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