Apotex Inc. v. Lundbeck Canada Inc.

Drug: escitalopram

The Applications Judge issued Orders of prohibition with a single set of reasons, in respect of the applications brought by Lundbeck in response to allegations of non-infringement and invalidity. The decision can be found here. The Notices of Allegation alleged that the patent is an invalid selection patent, as well as alleging obviousness, anticipation, inutility, lack of sound prediction, insufficient disclosure and ambiguity. The Judge found that the patent was not a selection patent and was instead a patent for a new substance, namely a substantially pure enantiomer. In addition, the Judge found that the invention was not anticipated, nor obvious, the invention was soundly predicted and had utility, and the claims were not ambiguous.

The Court of Appeal noted that the appellants made the same arguments on appeal as made before the Judge. The Court of Appeal then reviewed the reasons of the Judge, and found no error. With respect to the issue of whether the patent was a selection patent, the Court of Appeal found that the Judge made no error in finding that a claim to a racemate does not mean that the enantiomers are claimed.

The Court of Appeal also addressed the arguments made on appeal by a number of the generic companies that the Judge erred in considering evidence from other proceedings, and in issuing one set of reasons to address three applications. The Court of Appeal rejected these arguments.