The application under the NOC Regulations was dismissed. The Court found that Pharmascience’s allegations of non-infringement, anticipation, obviousness and overbreadth of one patent and non-infringement of a second patent were justified.

When considering the test for obviousness, the Judge looked at whether it was obvious to try to obtain the invention rather than whether the invention itself was something that would be obvious to try.

Furthermore, in considering the allegation of overbreadth, the Judge looked at this legal concept in the context of a functional claim. The Judge held that if the claim is to be construed as catching every stable composition no matter how or why it is stable, this is over-broad claiming.

The full text of this decision can be found at:

http://decisions.fct-cf.gc.ca/en/2009/2009fc1128/2009fc1128.html