Axcan Pharma Inc. v. Pharmascience Inc.

Axcan Pharma Inc. v. Pharmascience Inc.

The court construed the single claim purposively and held the dosage range 13-15 mg/kg/day is an essential element of the claim; because that essential element makes the patent a claim to a method of medical treatment, which is not patentable, the patent is invalid for the purposes of this application;...

Source-derived case information.

Citation
2006 FC 527
Parties
Applicant: AXCAN PHARMA INC.; Respondent: PHARMASCIENCE INC.; Respondent: THE MINISTER OF HEALTH
Court
Federal Court
Jurisdiction
Canada
Judgment Date
26 April 2006
Procedural Posture
Pm(noc) Application Under Patented Medicine (notice of Compliance) Regulations / Application for Prohibition Under Pm(noc) Regulations; Reasons and Decision on Merits (federal Court)
Outcome
Application dismissed; Pharmascience's allegations found justified for purposes of the application; no prohibition order granted
Legal Topics
Patent Validity, Notice of Compliance, Prior Publication, Claim Construction, Method of Medical Treatment Exclusion
Source Language
english
Patent Law Pharmaceutical Regulation Administrative Law Intellectual Property Patent Validity Notice of Compliance Prior Publication Claim Construction +1 more

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Parties

AXCAN PHARMA INC.

Applicant

PHARMASCIENCE INC.

Respondent

THE MINISTER OF HEALTH

Respondent

Procedural Posture

Pm(noc) Application Under Patented Medicine (notice of Compliance) Regulations / Application for Prohibition Under Pm(noc) Regulations; Reasons and Decision on Merits (federal Court)

Legal Issues

  1. 1 Whether Pharmascience's allegations that patent 1,318,590 is invalid are justified
  2. 2 Whether the claimed dosage 13-15 mg/kg/day is an essential element of the patent claim
  3. 3 Whether the patent is invalid for anticipation by prior publication or prior use/sale in Canada

Ratio Decidendi

The court construed the single claim purposively and held the dosage range 13-15 mg/kg/day is an essential element of the claim; because that essential element makes the patent a claim to a method of medical treatment, which is not patentable, the patent is invalid for the purposes of this application; alternatively, if dosage were non-essential the patent would have been anticipated by a prior publication, therefore Pharmascience's allegations were justified and the applicant's request for a prohibition order failed.

Court Disposition

Application dismissed; Pharmascience's allegations found justified for purposes of the application; no prohibition order granted

Orders

  • Application dismissed with costs to Pharmascience Inc.
  • No prohibition order issued against the Minister of Health (Minister not restrained from issuing a Notice of Compliance)