Decision

Apotex Inc. v. Shire LLC, 2021 FCA 52

Justice Gleason; Justice Rennie; Justice de Montigny - 2021-03-11

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In reasons reported at 2018 FC 637 (Decision), Fothergill J. concluded that the asserted claims of CA 646 were valid and that the Minister should be prohibited from issuing an NOC for LDX to Apotex. ... For the reasons that follow, I would dismiss the appeals with costs. ... As noted, the validity analysis does not change depending on whether the patent was formally classified as a selection patent or not. The focus of an anticipation or obviousness inquiry is, as always, on what the patent actually claims in comparison to what is disclosed in the prior art. ... Phrased another way, there are numerous other ways to “perform” [prior art] AU 168 without necessarily infringing CA 646. Therefore, LDX, as claimed in claims 1-5 and 8, was not specifically disclosed by AU 168 ... To recapitulate, although a certain degree of redundancy is often inherent at the inventive concept stage, an inventive concept cannot be used as a vehicle to construe or read the inventive concept of claims more narrowly or broadly than their text, or plain language, will allow. As such, redundancy is only permitted where a purposive analysis shows that claims are in effect duplicated.

Decision relates to:

 

Canadian Intellectual Property