Obviousness

March 24, 2015

Mylan-Tadalafil does not Infringe Eli Lilly’s Formulation Patent in NOC Proceeding

Eli Lilly Inc v Mylan Pharmaceuticals ULC, 2015 FC 178 - Mylan did not infringe the ‘948 Patent because the Mylan’s tadalafil compound did not have the claimed particle size distribution and the formulation did not contain the claimed concentration of hydrophilic binder. The Court rejected two purposive arguments by Eli Lilly in favour of a more literal reading of the patent.
January 23, 2015

Patent for using a Short Needle for Intradermal Delivery for Vaccinations Rejected for Obviousness

Commissioner’s Decision # 1371 - The Commissioner refused to grant GlaxoSmithKline’s patent application for an “influenza vaccine formulation for intradermal delivery” due to obviousness since there was always a motivation to use the ID route, but it had always been impractical until the advent of a short needle device.
January 13, 2015

Commissioner Finds Non-Invasive Virtual Reality Training System to be Inventive

Commissioner’s Decision # 1372 - The Patent Appeal Board reversed an examiner’s finding of obviousness for Canadian Patent Application No. 2,554,498, which discloses a virtual reality simulator for training users in the skill of welding.
January 8, 2015

Commissioner Approves eBay’s Automated Email Notification Patent

Commissioner’s Decision # 1369 - Two elements of the invention were found to be inventive: (1) the “push” process for keeping status information up-to-date, and (2) the automatic notification system that automatically sends an email message only when a delivery status has changed.
October 29, 2014

Federal Court Rejects Subway Video Advertising Patent for Obviousness

Blair v Canada (Attorney General), 2014 FC 861 - In coming to its finding of obviousness, the Commissioner determined that while the combination of the elements in the invention as a whole was novel, it did not involve ingenuity since there was a “trend in the art” of installing video systems in a wide variety of transportation systems.
October 27, 2014

Expert witnesses proven to be pivotal in Dow Chemical patent infringement suit

Dow Chemical Co v NOVA Chemicals Corp, 2014 FC 844 - The Federal Court found that NOVA Chemicals infringed Canadian Patent No. 2,160,705, owned by The Dow Chemical Company, by NOVA’s use of its “SURPASS” polyethylene product. Allegations of invalidity for lack of utility, claims broader than any invention made or disclosed, anticipation, obviousness, double patenting, and insufficiency of the specification were unsuccessful.
October 17, 2014

Federal Court Invalidates Patent on Infomercial Garden Hose

E Mishan & Sons, Inc v Supertek Canada Inc, 2014 FC 326 - The Federal Court dismissed an infringement claim made by the plaintiffs regarding the sale of self-expanding garden hoses by the defendants because the infringed claims were declared invalid for obviousness.
October 16, 2014

Federal Court Upholds Re-examination Board’s Decision Invalidating Waste Heat Recycling Claims

Newco Tank Corp v Canada (Attorney General), 2014 FC 287 - The person of ordinary skill in the art was determined to have background knowledge that there was a heat inefficiency problem that the invention seeks to address. The only evidence for this proposition is that it was discussed under the “SUMMARY OF THE INVENTION” heading of the patent.
July 31, 2014

Federal Court Prohibited Issuance of a NOC for Generic Version of Lumigan

Allergan Inc v Apotex Inc, 2014 FC 567 - In terms of claim construction, this case shows the tension between construing claims based solely on the wording of the claims versus peering beyond the wording of the claims to distill an underlying invention.