This was an appeal by Lilly of a decision of the Federal Court finding Lilly’s patent invalid for lack of utility. The Federal Court decision is found here and our summary is found here. The Court of Appeal dismissed Lilly’s appeal.
Lilly raised three legal issues on appeal. The Court of Appeal found that the Judge did not err with respect to construing the promise of the patent, and did not require too high a standard of proof of utility. The Court of Appeal found that the patent specifically promised that atomoxetine is a clinically effective treatment of ADHD and therefore, the utility of the patent is determined by examining whether the drug will do what the patent promised it would do. The Court of Appeal found that the question is whether Lilly had sufficient evidence to establish that the drug would deliver on the promise of the patent and the Judge concluded that Teva had established that the answer to the question was no. The Court of Appeal found no reversible error in this determination.
With respect to sound prediction, the Court of Appeal found that, following a previous decision, the factual basis of the prediction must be disclosed in the patent. The Court of Appeal further found no error of principle in the Judge’s exercise of discretion in respect of the award of costs.