Teva Canada Limited v. Pfizer Canada Inc., 2019 FCA 15 (Desvenlafaxine*)

Justice Webb; Justice Boivin; Justice de Montigny - 2019-01-25

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On August 22, 2017, following proceedings under the Patented Medicines (Notice of Compliance) Regulations, Brown J. of the Federal Court issued an order as part of his judgment (2017 FC 777) prohibiting the Minister of Health from issuing a NOC to Teva in respect of a NOA sent by Teva to Pfizer until the expiry of Canadian Patent No. 2,436,668. The ‘668 Patent concerns a drug called O-desmethyl-venlafaxine (ODV). It is used for the treatment of depression. This appeal relates to Form I ODV succinate which is a particular crystal form of a particular salt of ODV, namely ODV succinate. Teva appeals the Federal Court Judge’s decision. This appeal, along with the companion appeal in Apotex Inc. v. Pfizer Canada Inc. et al. (2019 FCA 16), concern issues related to the Federal Court Judge’s obviousness analysis in respect of the ‘668 Patent. ... In essence, Teva argues that the Federal Court Judge misconstrued and misapplied the test for obviousness as set out in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61 and that his obviousness analysis is directly contrary to two judgments rendered by our Court: Bristol-Myers Squibb Canada Co. v. Teva Canada Limited, 2017 FCA 76; and Pfizer Limited v. Ratiopharm Inc., 2010 FCA 204. Teva also argues that the Federal Court Judge made palpable and overriding errors in considering the properties in his reasons because they are not part of the inventive concept and that he further erred in accepting hearsay evidence and misunderstanding the evidence particularly as it relates to the work conducted by Wyeth. For the reasons below, I would dismiss the appeal with costs.

Decision relates to:


Canadian Intellectual Property