- Allegations of Invalidity Found Justified on the Basis of Obviousness
- April 3, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
- Law Firm: Borden Ladner Gervais LLP - Ottawa Office
- Astrazeneca Canada Inc. v. Mylan Pharmaceuticals ULC, 2017 FC 142
Drug: esomeprazole and naproxen
In this case, the Federal Court dismissed an application for an order of prohibition. The patent at issue claimed pharmaceutical formulations of esomeprazole and naproxen.
The court considered and rejected challenges to the experts of both sides, holding that the analysis would turn on which of the experts provided the most compelling evaluations of the common general knowledge of the POSITA, the state of the art and the other factors in the obviousness allegations. The court held that the obviousness allegations were justified. There was nothing novel or inventive about combining an NSAID and a PPI, nor the specific type of each used in the asserted claims. Nor was the concept of sequential release when co-formulating a PPI with a gastroprotective drug novel. However, the Court held it was novel to apply the sequential release profile in an NSAID-PPI co-formulation.
The Court held that the claimed sequential release was obvious. Furthermore, it was obvious to try.