The Supreme Court of Canada granted leave today in AstraZeneca Canada Inc., et al. v. Apotex Inc., et al. (Esomeprazole), which considers, among other things, the promised utility doctrine in Canada. More details below.

The appeal is from 2015 FCA 158 (A-420-14), which is an appeal from 2014 FC 638 (T-1668-10). The Supreme Court of Canada proceeding is SCC #36654.

Appeal court decision summary:

For reasons cited as 2014 FC 638, a judge of the Federal Court declared Canadian patent 2,139,653 to be invalid because of inutility. The Federal Court found that, while the patent promised that its compounds provide improved pharmacokinetic and metabolic properties which will give an improved therapeutic profile, such as a lower degree of interindividual variation, this promise was neither demonstrated nor soundly predicted at the time the patent was filed. For completeness, the Federal Court also dismissed Apotex’ assertions that the patent was both obvious and anticipated. On this appeal from the judgment of the Federal Court, AstraZeneca asserts that the Federal Court erred in law by misconstruing the promise of the relevant claims. More specifically, it argues that the Federal Court erred by failing to consider utility, and any promise of utility, on a claim by claim basis, erred by construing the utility of the claims in issue in a manner that was inconsistent with their inventive concept and further erred by failing to apply a purposive construction to the promise of utility. The Court disagreed that the Federal Court erred and dismissed the appeal with costs.

More information on this and other intellectual property proceedings at the Supreme Court are available on my Supreme Court litigation page.