In reasons dated June 3, 2015, the Federal Court of Appeal (FCA) affirmed a decision of Justice O’Reilly (2014 FC 567) dismissing Apotex’s allegations relating to a patent covering Allergan’s LUMIGAN RC®. The FCA confirmed Justice O’Reilly’s findings that Apotex’s allegations of anticipation, obviousness and lack of utility were unjustified.
The most interesting passage in the FCA’s decision is with respect to Apotex’s utility allegation. Apotex argued that there was not proper disclosure of the line of reasoning because it was not explicitly stated in the patent. The lower court judge had indicated that the line of reasoning was “implicit in the data itself and would be apparent to the skilled reader”, and thus any requirement for the disclosure of the factual basis and line of reasoning was met. The FCA affirmed the lower court judge’s decision, holding that the line of reasoning and factual basis do not need to be explicitly disclosed when they would be “self-evident” to the skilled person.
The FCA relied on its decision in Eurocopter1 in making this finding. The Court in Eurocopter found that the factual basis and line of reasoning do not need to be disclosed if they can be found in accepted scientific laws or principles, or in information that forms part of the skilled person’s common general knowledge.
Regarding the obviousness and anticipation arguments made by Apotex, the FCA found that Apotex had not established that the lower court judge made a palpable and overriding error. In particular, for obviousness, Apotex argued that the judge failed to explain why he relied on one version of conflicting evidence over the other. Relying on Housen2, the FCA noted that it was entitled to presume that the lower court judge reviewed all of the evidence, and thus that “reliance on the evidence of some witnesses over others cannot by itself demonstrate that the Judge forgot, ignored or misconceived the evidence in a manner that affected his conclusion”.
A copy of the FCA’s decision (2015 FCA 137) can be found here.
1 2013 FCA 219 at paras 152-153, discussed here.
2 2002 SCC 33 at para 46.