Bayer-Schering Pharma v. Attorney General of Canada

In an appeal of a decision of the Commissioner of Patents, Bayer challenged the Commissioner’s decision that its patent was not issuable on the basis of obviousness double-patenting. Bayer had a previous issued patent for the compound when made by a particular process and now sought a patent for the compound itself. The Federal Court had previously upheld the Commissioner’s decision.

The Court of Appeal summarized the law relating to the standard of review and obviousness double-patenting. The Court held that since the claim for the compound in Bayer’s application was not materially different from that in the process dependent parent patent, the application lacks novelty and inventive ingenuity. Thus, the Commissioner was correct in deciding that the application should be denied on the basis of obviousness double-patenting.