This was the first case in which the Federal Court of Appeal considered the obviousness test set out in the 2008 Supreme Court of Canada case of Apotex v. Sanofi-Synthelabo.
The Court stated:
The test recognized is “obvious to try” where the word “obvious” means “very plain.” According to this test, an invention is not made obvious because the prior art would have alerted the person skilled in the art to the possibility that something might be worth trying. The invention must be more or less self-evident.
While the Federal Court Judge does not use the phrase “obvious to try,” his reasons show that he conducted his analysis along the dividing line drawn in Sanofi-Synthelabo. Specifically, he rejected the contention that the invention was obvious based on mere possibilities or speculation and looked for evidence that the invention was more or less selfevident.