The Supreme Court of Canada will be hearing AstraZeneca Canada Inc. v. Apotex Inc. on November 8, 2016 on the promised utility doctrine. Several intervenors have now filed materials on the promise doctrine: Intellectual Property Institute of Canada (IPIC), International Federation of Intellectual Property Attorneys (FICPI), Innovative Medicines Canada, BioteCanada, Intellectual Property Owners Association (IPO), Centre for Intellectual Property Policy (CIPP) and Canadian Generic Pharmaceutical Association (CGPA).
The proceeding is an appeal from Astrazeneca Canada Inc. v. Apotex Inc., 2015 FCA 158 (Esomeprazole). The Federal Court had found (in 2014 FC 638) that, while the patent made certain promises, the promise was neither demonstrated nor soundly predicted at the time the patent was filed. On the appeal, AstraZeneca asserted that the Federal Court erred in law by misconstruing the promise of the relevant claims. More specifically, it argued that the Federal Court erred by failing to consider utility, and any promise of utility, on a claim by claim basis, erred by construing the utility of the claims in issue in a manner that was inconsistent with their inventive concept and further erred by failing to apply a purposive construction to the promise of utility. The Court disagreed that the Federal Court erred and dismissed the appeal with costs.
At the Supreme Court, a number of organizations have sought to intervene. Copies of the materials for the following intervenors are
- Canadian Generic Pharmaceutical Association (CGPA) (pdf)
- International Federation of Intellectual Property Attorneys (FICPI) (pdf)
- Innovative Medicines Canada and BioteCanada
- Centre for Intellectual Property Policy (CIPP) (pdf)
- Intellectual Property Institute of Canada (IPIC) (pdf)
- Intellectual Property Owners Association (IPO) (pdf)
More information on other intellectual property proceedings at the Supreme Court are available on my Supreme Court litigation page.