[2013] 2 F.C.R. D-8
Patents
Actions by plaintiffs seeking declaration under Patent Act, R.S.C., 1985, c. P-4, s. 60(1) that defendant’s Canadian Patent No. 2093203 ('203 patent) expiring on April 1, 2013, certain claims invalid—'203 patent composed of imatinib, active ingredient in defendant’s product GLEEVEC—Plaintiffs also applying for notice of compliance in respect of tablets containing imatinib, serving defendant with notice of allegation with respect to '203 patent—Main issues whether '203 patent invalid, meeting disclosure requirements set out in Act, s. 27(3)—Plaintiffs failing in part to demonstrate that claims of '203 patent invalid—Disagreement between parties including interpretation of words “can be used” in disclosure—Plaintiffs arguing word “can” when referring to therapeutic use of compounds meaning compounds guaranteed to treat described medical conditions—In context of ‘203 patent, cancer research, word “can” not conveying meaning of certainty—“Can” equated to term “potential”—Link between claimed use, cancer treatment having to be substantial—'203 patent meeting s. 27(3) disclosure requirement—Defendant arguing that missing data not going to s. 27(3) sufficiency, relying on Pfizer Canada Inc. v. Canada (Minister of Health), 2008 FCA 108, [2009] 1 F.C.R. 253 (Atorvastatin)—Atorvastatin teaching that lack of data cannot in and of itself result in finding of insufficiency—One must ask rather whether omission of data from patent preventing person of ordinary skill in art from using invention as contemplated by inventor—Lack of data herein not preventing skilled person from using invention as contemplated—Actions allowed in part.
Teva Canada Limited v. Novartis AG (T-2021-10, T-833-11, 2013 FC 141, Snider J., judgment dated February 19, 2013, 150 pp.)