Apotex Inc. v. Janssen Inc., 2021 FCA 45 (Abiraterone*)

Justice Webb; Justice Boivin; Justice Locke - 2021-03-04

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This is an appeal of a decision of the Federal Court (2019 FC 1355), which granted an application by the respondents Janssen pursuant to subsection 6(1) of the PM(NOC) Regulations, as they stood prior to September 21, 2017. The Federal Court’s judgment prohibited the Minister of Health from granting an NOC to the appellant, Apotex, for its APO-ABIRATERONE product. ... The trial in the second proceeding [involving the same patent but under the new PM(NOC) Regulations] was presided over by the same judge as in the first and led to a decision (2021 FC 7). This second decision found, contrary to the first, that the 422 Patent is, and always has been, invalid for obviousness. ... For the reasons provided below, I have concluded that the present appeal should be dismissed. ... The issues in dispute in this appeal can be divided into four categories: i) Patentable Subject Matter [combinations], ii) Obviousness [more or less self-evident that it ought to work], iii) Inutility [demonstration of utility and a prediction of utility], iv) Infringement [inducement].

Decision relates to:


Canadian Intellectual Property