Pfizer Canada Inc. v. Apotex Inc.

Pfizer Canada Inc. v. Apotex Inc.

Claim 23 construed as a method of administering azithromycin in non‑capsule oral dosage forms to fed patients; routine, non‑inventive testing of known tablet/suspension formulations would have led to the claimed result, rendering the claimed subject‑matter obvious and amounting to a mere discovery; the ‘071 patent is invalid and Apotex’s allegations of non‑infringement and invalidity are justified, so no prohibition issued.

Citation
2005 FC 1421
Parties
Applicant: PFIZER CANADA INC.; Applicant: PFIZER INC.; Respondent: APOTEX INC.; Respondent: THE MINISTER OF HEALTH
Court
Federal Court
Jurisdiction
Canada
Judgment Date
17 October 2005
Procedural Posture
Application for Prohibition Under Patented Medicines (notice of Compliance) Regulations (s.6) / Hearing and Final Decision on Application (reasons for Order)
Outcome
Application dismissed; no prohibition order; ‘071 patent held invalid
Legal Topics
Claim Construction, Anticipation, Obviousness, Infringement (direct and Indirect), Gillette Defence, Listing on Patent Register, Method of Medical Treatment, Commercial Success
Source Language
English
Patent Law Pharmaceutical Regulatory Law Administrative Law Claim Construction Anticipation Obviousness Infringement (direct and Indirect) Gillette Defence +3 more

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Parties

PFIZER CANADA INC.

Applicant

PFIZER INC.

Applicant

APOTEX INC.

Respondent

THE MINISTER OF HEALTH

Respondent

Procedural Posture

Application for Prohibition Under Patented Medicines (notice of Compliance) Regulations (s.6) / Hearing and Final Decision on Application (reasons for Order)

Legal Issues

  1. 1 Proper construction of claim 23
  2. 2 Whether the ‘071 patent was anticipated
  3. 3 Whether the ‘071 patent was obvious

Ratio Decidendi

Claim 23 construed as a method of administering azithromycin in non‑capsule oral dosage forms to fed patients; routine, non‑inventive testing of known tablet/suspension formulations would have led to the claimed result, rendering the claimed subject‑matter obvious and amounting to a mere discovery; the ‘071 patent is invalid and Apotex’s allegations of non‑infringement and invalidity are justified, so no prohibition issued.

Court Disposition

Application dismissed; no prohibition order; ‘071 patent held invalid

Orders

  • Application dismissed with costs to the respondent in the normal scale with allowance for second counsel at the hearing.