The Canadian Federal Court of Appeal recently considered whether ‘invalid selection’ can be an independent ground for invalidating selection patents. Katie Wang looks at the implications.
The conclusion is not surprising: a selection patent will not receive special treatment. Its validity is vulnerable to attack on any of the grounds provided in the Patent Act. Accordingly, a determination that the conditions for a select patent have not been met does not constitute an independent basis upon which to attack the validity of the patent (Eli Lilly Canada Inc. v Novopharm Limited).
In this case, Eli Lilly commenced an action for patent infringement against Novopharm with respect to Lilly’s ‘113 patent. The ‘113 patent is a selection patent for the compound olanzapine (sold under the brand name Zyprexa), used to treat schizophrenia.
Novopharm defended the infringement allegation made against it and counterclaimed on the ground that the ‘113 patent was not a valid selection patent. Novopharm’s other grounds included, inter alia, anticipation, double patenting and obviousness.
Life Sciences Intellectual Property Review (LSIPR) tracks the increasing challenges for intellectual property specialists in the rapidly evolving world of life sciences. From gene patents to stem cell research, we provide the very best news and analysis.
To continue reading this article and to access 4,500+ articles, our digital magazines and special reports published for LSIPR subscribers only then you will need a subscription.
If you are already subscribed please login.
Official LSIPR subscribers include:
Allen & Overy
Arnold & Siedsma
Birch, Stewart, Kolasch & Birch LLP (BSKB)
Carpmaels & Ransford
Cooley
European Patent Office
Finnegan LLP
GH Research
Gowling WLG
George Washington Law School
HGF Limited
IQVIA
Kirkland & Ellis International LLP
Marks & Clerk
Mintz Levin
NiKang Therapeutics Inc.
Powell Gilbert LLP
Procopio, Cory, Hargreaves & Savitch LLP
Taylor Wessing
The United States Patent and Trademark Office (USPTO)
Valea AB
World Intellectual Property Office
For multi-user price options, or to check if your company has an existing subscription we can add you into for FREE, please contact Atif at achoudhury@newtonmedia.co.
If you have any technical issues please email tech support.
invalid selection, Canada Patent Act, Novopharm, pharmaceuticals