Merits of a 55.2 proceeding; 2009 FC 235; raloxifene; March 19, 2009

The Court dismissed the proceeding, finding the allegation of non-infringement justified, as well as the allegation as to invalidity based on utility justified.

The patent at issue related to claims for particles of raloxifene having a particular size. Both parties submitted testing results to determine the size of the particles in the product. However, on a balance of probabilities, the Court found the allegation of non-infringement to be justified.

Allegations were made as to both obviousness and inutility. The Court found that if the requirement of utility is satisfied then the claims can be said to be inventive. However, the Court found that the allegation with respect to sound prediction of utility was justified.

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