The Court granted an order prohibiting Apotex from obtaining a NOC until expiry of the patent in question. The patent in issue related to the use of sildenafil for the treatment of erectile dysfunction in men. Apotex had alleged invalidity, raising various grounds: obviousness, anticipation and claims overly broad. Apotex also asserted in a motion to strike heard at the beginning of the hearing that the patent was ineligible for listing.
On the issue of obviousness, the Court found that the patent was unobvious in view of the art cited. Further, the court confirmed that inhouse work cannot be used to establish obviousness, that a relevant consideration is why others did not come up with the solution, and the successfulness of the product when it was brought to market. The Court also acknowledged that science in the area was advancing in the direction of the invention, but there was nothing pointing directly at the invention. Further, the Court commented that the fact that significant factors were known is to be expected as seldom does an invention come out of the blue.
On issues of anticipation and overbroad claiming, the Court also found in the applicant's favour.
On the listing issue, having indicated that it was not appropriate to hear a motion to dismiss at the beginning of a hearing, the Court went on to comment that the use of the language of "use of [sildenafil] for the manufacture of a medicament …[for treatment of ED]" is essentially the same as "use of [sildenafil] for the treatment of ED" and that the inclusion of the language of "for the manufacture of a medicament" does not render such claims outside the definition of "claim for the use of the medicine" under the NOC Regulations.
The full text of the decision can be found at: