Teva brought a motion pursuant to section 6(5)(a) of the Patented Medicines (Notice of Compliance) Regulations relating to the listing of a patent on the Patent Register. KIVEXA® contains two medicinal ingredients, abacavir sulfate and lamivudine. The patent claims abacavir sulfate. No claims specifically claim the combination of abacavir and lamivudine, although there are claims to pharmaceutical formulations in which one or more classes of therapeutic agents may be combined with abacavir.
The Court found that the patent is not eligible for listing on the Patent Register because it does not have the required product specificity. The Court rejected the argument by Viiv and the Minister that the degree of product specificity required for listing is different pursuant to section 4(2)(a) of the Regulations as compared to section 4(2)(b). The Court held that different listing requirements would not be consistent with the purpose of the Regulations. Accordingly, the application was dismissed.