Actavis Pharma Company v. Alcon Canada Inc., 2015 FCA 192

Drug: moxifloxacin

In the second case, Actavis appealed the grant of a prohibition order by the Application Judge. At issue was whether the patent was invalid for lack of sound prediction and utility and for obviousness. The Application Judge held that the allegations were not justified and the FCA dismissed the appeal.

The patent claimed moxifloxacin and its stereoisomers and mixtures. The FCA held that construction of the patent is a matter of law, to be reviewed on a correctness standard; whereas sound prediction and obviousness are matters of mixed fact and law, to be reviewed on a standard of palpable and overriding error. The FCA held that the Appellant was essentially re-arguing its case, asking it to prefer different evidence.