Astrazeneca Canada Inc. v. Apotex Inc., 2015 FCA 158 

Drug: omeprazole

The Federal Court of Appeal (FCA) upheld a recent infringement decision finding a patent to be invalid due to inutility (decision heresummary here). The Federal Court held that the patent promised its compounds would provide improved pharmacokinetic and metabolic properties which would give an improved therapeutic profile. However, this promise was held to be neither demonstrated nor soundly predicted. The FCA held that the Federal Court had not made any errors in its findings.

The FCA held that inutility must be assessed on a claim by claim basis, it is settled law that some promises can be construed to impose requirements across each of a patent’s claims while other promises may only touch a subset of the claims.

The FCA rejected the Appellants’ assertion that because a claim must receive one interpretation for all purposes, there must be a unitary understanding of the essential elements of the claim, inventive concept, and utility. The Court was not shown any jurisprudence to support the submission that the promise of utility must be virtually coterminous with the inventive concept.