Decision

Hospira Healthcare Corporation v. The Kennedy Trust For Rheumatology Research, 2020 FCA 30 (Infliximab*)

Justice Nadon; Justice Rivoalen; Justice Locke - 2020-01-30

Read full decision. Summary prepared by Alan Macek:

The principal decision under appeal (2018 FC 259 dated March 7, 2018) addressed the merits of the action and the counterclaim, and concluded that the 630 Patent was valid and infringed. ... For the reasons set out below, I would allow the appeal on the merits, and remit the matter to the Federal Court for reconsideration of certain issues. ... Accordingly, the finding of infringement under the Saccharin doctrine was limited to those who conduct activities in the territory of the patent, activities such as importing, selling or using the product in question. ... the knowledge at issue in the third prong of the test [for inducement] is knowledge that the influence is being exercised, rather than knowledge that the resulting activity will be an infringement. ... In light of section 28.3 of the Patent Act and the applicable jurisprudence and commentaries,I conclude that it is an error to exclude from consideration prior art that was available to the public at the relevant date simply because it would not have been located in a reasonably diligent search. ... It should be noted that, whereas being "more or less self-evident to try to obtain the invention"(per Sanofi at para 66) is a requirement for obviousness to try, being "more or less self-evident that what is being tried ought to work" (per Sanofi at para 69) is not a requirement but merely a factor to be considered. ... I would remit this matter to the Federal Court for reconsideration of the issues of anticipation and obviousness in light of these reasons.

Decision relates to:

  • A-326-16 - HOSPIRA HEALTHCARE CORPORATION v. THE KENNEDY INSTITUTE OF RHEUMATOLOGY ET A which is an appeal from a decision dated 2016-09-08 in T-396-13
  • A-328-16 - HOSPIRA HEALTHCARE CORPORATION v THE KENNEDY INSTITUTE OF RHEUMATOLOGY which is an appeal from a decision dated 2016-09-08 in T-396-13
  • A-329-18 - HOSPIRA HEALTHCARE CORPORATION v. THE KENNEDY TRUST FOR RHEUMATOLOGY RESESAR which is an appeal from 2018 FC 992 in T-396-13
  • A-338-18 - HOSPIRA HEALTHCARE CORPORATION v. THE KENNEDY TRUST FOR RHEUMATOLOGY RESEARC which is an appeal from 2018 FC 992 in T-396-13

 

Canadian Intellectual Property