The Regents of the University of California et al v. I-MED Pharma Inc., 2018 FC 164
Justice Manson - 2018-02-12
Read full decision. Summary prepared by Alan Macek:
This trial decision concerns the validity and enforcement of CA2,494,540 entitled "Tear Film Osmometry" directed to measuring the osmolarity of a sample of a bodily fluid, including particularly tear film, whereby the sample fluid is deposited on a chip. The Defendant asserted non-infringement (including the Gillette Defence) and invalidity of each of the claims asserted by the Plaintiffs under the ‘540 Patent, on the basis of anticipation, obviousness, inutility, insufficient disclosure. The court found that elements of the claims were in the Defendant's product but also in the prior art. Accordingly, the court concluded that "the Defendant’s alleged infringing actions are part of the prior art, so even if those claims of the ‘540 Patent could be found to be valid, the Defendant would not infringe the anticipated claims." The Court stated out that that result "flows directly from the dilemma created by the Plaintiffs urged broad construction for the asserted claims to include both in vivo and ex vivo applications of the invention, which, while I have agreed to that construction, leads to invalidity due to anticipation." The court also found the claims obvious, that they had utility, and the description was sufficient to support the claims.
Decision relates to:
- T-300-16 - THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND OTHER v. I-MED PHARMA INC.
- A-86-18(2019 FCA 179) - which is an appeal from this decision