Teva Canada Limited
v Novartis Pharmaceuticals Canada Inc, 2013
FCA 244.

Background

Teva appealed a judgment of Justice Hughes(2012 FC
283) where a prohibition order was issued prohibiting Teva from selling
zoledronic acid in the patented forms. Teva’s appeal was based upon the Judge
erring in his obviousness analysis by substituting a higher standard of
obviousness from the UK and by failing to properly ascertain the state of the
art and identifying the differences between the inventive concept and the state
of the art. Teva alleges that this led to an incorrect application of the Sanofi test. Finally Teva alleged that the Judge misconstrued and
misapprehended the evidence with respect to prior art.

Analysis

The Judge did not apply a higher standard than that set
out in Sanofi. No higher standard was
applied – the Judge’s statements at paragraph 161 were rhetorical
embellishments.

With respect to the Judge failing to apply step 3 of the Sanofi test – there is no single
mandatory approach for the conduct of this inquiry. While the Judge could have
provided more information with respect to the differences between the inventive
concept and the state of the art it is evident he did conduct this analysis.

In this case none of the Judges conclusions amount to a
palpable and overriding error. The Judge is presumed to have considered all of
the evidence before him. The presumption is not rebutted only because the Judge
does not refer to certain pieces of evidence. It is clear that in this case the
Judge was alert and alive to the issues raised.