Appeal of 55.2 Decision; clarithromycin; 2009 FCA 94; March 20, 2009

The Court of Appeal dismissed the innovator's appeal regarding a finding that the allegation of invalidity was justified.

The Court below had found that Sandoz' allegations as to anticipation were justified. The Court had construed the claim to not include the special advantages of Form I clarithromycin as essential elements. The Court of Appeal reviewed this construction and found it correct in law. Further, since the claim of the patent at issue covers any amount of Form I, even when mixed with other form, and since the experts agreed that at least a small amount of Form I would be made when following the teachings of the prior art, the prior art anticipated the patent at issue.

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