Appeal of 55.2 Decision; February 4, 2008; olanzapin
The Court of Appeal upheld a prohibition order. The issue before the Court was whether the applications judge erred in law in that the issue of sufficiency of disclosure was not before her since it had not been raised in the notice of allegation. The generic company argued on appeal that the issue of sufficiency of disclosure arose as a result of the innovator having characterized the patent at issue as a valid selection patent and in the notice of application and thus the applications judge ought to have addressed the issue.
The Court of Appeal dismissed the appeal, upholding the decision of the applications judge who held that sufficiency of the disclosure is a stand alone ground that ought to have been raised in the notice of allegation.
The full text of this decision can be found at: http://decisions.fca-caf.gc.ca/en/2008/2008fca44/2008fca44.html