See the summary above. Merck’s patent in this case (the ‘965 patent) covered the co-administration and co-formulation of dorzolamide and timolol (which was sold as COSOPT). Mr. Justice O’Reilly found Apotex’ allegations of anticipation with respect to the co-administration claims to be justified and the remainder was obvious.
On the anticipation allegations, the Judge did not accept Merck’s submissions that because the prior art only disclosed dorzolamide by reference to Merck’s own internal code for it, the prior art did not disclose dorzolamide for the purposes of anticipation. The evidence showed that the skilled person without much effort could have identified what product the code was referring to. The Judge, having concluded that co-administration was in the prior art, found that the co-formulation of dorzolamide and timolol was a routine step thereafter and was obvious to try. The Judge drew support from similar proceedings in the English High Court in support of his findings.
The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2010/2010fc1043/2010fc1043.html