Justice Crampton - 2020-12-24
Read full decision. Automatically generated summary:
There are three principal issues in this action. ... For the reasons that follow, I have concluded that the generic alternative to RAPAFLO® that Sandoz seeks approval to produce will not infringe the patent at issue ... This is because some of the essential elements of claims 1 to 3 and 6 of that patent are not infringed by the Sandoz Product. Allergan’s suggestion to the contrary is based on a reading of the patent that, if upheld, would undermine the certainty and predictability of the patent system, and chill competition. I have also determined that section 53.1 of the Act cannot be invoked in this proceeding. This is because Allergan is not a “patentee”, within the meaning of the Act. Accordingly, the representations made to the Patent Office on behalf of Kissei and the amendments made to the proposed patent during the patent application process are inadmissible extrinsic evidence. Finally, I have concluded that the ‘002 Patent in question is not invalid on the ground of obviousness.
Decision relates to:
- T-2023-18 - ALLERGAN INC. v. SANDOZ CANADA INC. ET AL
- A-23-21 - which is an appeal from this decision