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Federal Court of Appeal affirms improper selection not a ground of invalidity

July 2010
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Gowlings represented the successful Plaintiffs, Eli Lilly Canada Inc., Eli Lilly and Company, Eli Lilly and Company Limited and Eli Lilly SA with a team that included Anthony Creber and Cristin Wagner. 

In a decision handed down on July 21, 2010, the Federal Court of Appeal in Eli Lilly et al v. Novopharm Limited reversed a decision impeaching a selection patent and remitted to the Trial Division for consideration issues of utility and sufficiency as the Court found the trial judge had failed to provide sufficient facts and analysis to allow for a meaningful review.
The Court of Appeal criticized the Court below for not having applied the correct legal tests for anticipation, obviousness and double patenting in assessing the validity of the ‘113 Patent (a selection patent for the compound olanzapine sold under the brand name Zyprexa). In doing so, the Court of Appeal affirmed, yet again, that selection patents are to be treated no differently than any other patent in terms of the validity analysis being conducted for each of the grounds of invalidity raised, denying a separate ground of invalidity called “improper selection”.  

For an in-depth summary, please click here.

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