Eli Lilly Canada Inc. v. Apotex Inc., 2024 FCA 72 (Tadalafil*)

Justice Webb; Justice Locke; Justice Rennie - 2024-04-16

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This is an appeal of 2022 FC 1398 that found various claims of the 784 Patent to be invalid for overbreadth and insufficiency. As a result, the Federal Court dismissed actions by the appellants against the respondents alleging infringement of the 784 Patent. The respondents had also argued that the claims in issue were invalid for inutility, but the Federal Court elected not to decide that issue. ... Stated briefly, the appellants argue that “physiologically acceptable” simply means non-toxic, such that any salt of tadalafil that is not toxic when administered is physiologically acceptable. For their part, the respondents argue that the Federal Court’s interpretation was correct – that a salt that is “physiologically acceptable” must be more than merely non-toxic, it must also be “stable and pure, not degraded”. ... As this Court has stated several times in recent years, it remains the case that a patent specification may be sufficient even if some amount of non-inventive trial and error experimentation is required, so long as it is not undue ... Accordingly, a patent may be sufficient even if it requires a minor research project, provided no inventiveness or undue experimentation is involved. ... I would dismiss the appeal with costs.

Decision relates to:


Canadian Intellectual Property