PATENTS |
Bayer AG v. Apotex Inc.
A-715-98
2001 FCA 263, Evans J.A.
13/9/01
7 pp.
Appeals by Apotex from Trial Division decision ((1998), 84 C.P.R. (3d) 23) granting order prohibiting MNHW from issuing to Apotex NOC with respect to drug ciprofloxacin hydrochloride, anti-bacterial and anti-microbial agent, until expiry of patents held by Bayer--Trial Judge rejected allegation Bayer's Canadian patents for ciprofloxacin invalid by virtue of Patent Act, s. 28(2) (precluding inventor from obtaining patent in Canada when inventor has already applied in another country for patent for invention)--Appeal dismissed--Trial Judge correctly concluded Canadian patents not for same invention as invention subject of certain foreign patents held, or applied for, by Bayer--No error in manner in which Trial Judge approached task of determining whether Canadian and foreign patents for same invention--Examined and compared claims of each patent, and disclosures (descriptive part of patent application), which he used to elucidate claims, but not to alter their scope when that was clear and unambiguous--Approach not inconsistent with "purposive approach" to construction of patents endorsed by case law--Difficult to avoid conclusion invention in patent for group of compounds, including ciprofloxacin, made by malonic ester synthesis process, whereas invention in foreign patent for somewhat larger group of compounds, including ciprofloxacin, made by processes not including malonic ester synthesis process--No reason to interfere with Trial Judge's conclusion that, looking at whole of specification, invention in Canadian patent not same as that in foreign patent--Patent Act, R.S.C. 1970, c. P-4, s. 28(2).