Eli Lilly Canada Inc. et al. v. Novopharm Ltd. (A-473-11), 2012 FCA 232 (Nadon, Sharlow, Trudel)

From the bench, the Federal Court of Appeal (“FCA”) dismissed Eli Lilly’s appeal from the decision of Justice O’Reilly on November 10, 2011 (2011 FC 1288), reported by Erica Lowthers of sim. IP Practice here.  Justice O’Reilly found that the claims at issue in Canadian Patent No. 2,041,113 (the “`113 Patent”), which included claims to olanzapine per se, the use of olanzapine for the treatment of schizophrenia and a pharmaceutical composition comprising olanzapine, were invalid for lack of sound prediction and dismissed the action.

This is the second time the FCA has heard this case.  In an earlier decision on October 5, 2009 (2009 FC 1018), Justice O’Reilly determined the `113 Patent invalid for lack of sound prediction, but the FCA found that he had erred and remitted the issues of utility and sufficiency of disclosure back to him (2010 FCA 197).

In this appeal, the FCA’s reasons were as follows:  “[1] Despite the able submissions of counsel for the appellant, we have not been persuaded that the judgment under appeal is based on any error of law or principle or any palpable and overriding error of fact.  [2] This appeal will be dismissed with costs”.