PATENTS |
Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare)
A-39-99
Létourneau J.A.
27/6/00
5 pp.
Appeal from Motions Judge's decision ((1998), 84 C.P.R. (3d) 492) issuing order prohibiting Minister of National Health and Welfare from issuing notice of compliance to Apotex for production of antibiotic norfloxacin until expiry of patent 961--Patent Act, s. 41(1), as then read, protected methods, processes of manufacture as claimed, but also obvious chemical equivalents of such processes or methods--Patent repeating statutory protection given by s. 41(1) against infringement by use of obvious chemical equivalents--Basically equivalence substituting ingredient or device performing substantially same function in same way to obtain same result--Expert evidence supporting proposition substituting bromine as appellant did in its process amounting to using obvious chemical equivalents of methods, processes of manufacture described or claimed by respondent in patent 961 and that person reasonably skilled in art would have known of interchangeability of that ingredient not contained in patent with one that was--Motions Judge's decision to prefer one expert's evidence over that of another not arbitrary, unsupported by record--Appeal dismissed without endorsing Motions Judge's conclusion Abbott Laboratories, Ltd. v. Nu-Pharm Inc. (1998), 83 C.P.R. (3d) 441 (F.C.A.) standing for proposition subsequent patent can only be relevant to prove state of art respecting patent under consideration when both patents invented by same person, or finding patent 466 improvement patent--Patent Act, R.S.C., 1970, c. P-4, s. 41(1).