The Court granted the application for judicial review and concluded that the patent at issue meets the eligibility requirements and should not have been removed by the Minister from the Patent Register.
The Minister had made a decision to remove the patent at issue from the Patent Register in respect of an SNDS under his obligations to maintain the Patent Register. The patent at issue had been allowed on May 12, 2006 but had not actually issued until June 18, 2006. The date for considering the listability of patents in respect of the New Regulations was June 17, 2006.
The Court did not accept the Applicant's submissions with regards to vested rights and delay. Further, the Court did not accept that the Regulations do not allow the Minister to delete patents from the Patent Register.
However, the Court did find that the patent was eligible for listing under the New Regulations as it contains a claim for the new use of the medicine found in the SNDS. The SNDS specifically added the new use for treatment of NSAID ulcers. The patent claimed the use of the compound for the treatment of ulcers generally. The expert evidence indicated that a person skilled in the art would clearly understand that an NSAID ulcer is a type of ulcer and a skilled chemist would interpret the claims as covering any type of stomach ulcer, however caused.
Furthermore, the Court found simply because a patent includes claims for polymorphic forms of the medicine, does not disqualify it for listing. As the patent contains a claim for the changed use, it is eligible in spite of the fact that it also contains claims for polymorphic forms.
The full text of the decision can be found at: