Fed Circuit to address cannabis clash
The dispute centres on a process for extracting CBD from cannabis plant material, which anticipates the use of CBD as an anti-epileptic treatment.
Canadian medical cannabis company Canopy Growth has brought its patent infringement dispute over its cannabidiol (CBD) drug against GW Pharma before the US Court of Appeals for the Federal Circuit.
In an amended opening brief filed Friday, July 1, Canopy Growth accused GW Pharma of infringing US patent number 10,870,632 to produce its flagship epilepsy treatment, Epidiolex, without authorisation.
The disputed patent covers a process for extracting CBD from cannabis plant material, and according to Canopy, anticipates the use of CBD as an anti-epileptic treatment.
Each independent claim of the patent recites a process for producing the extract that includes a step of subjecting the cannabis plant material (or the primary extract) “to CO2 in liquefied form under subcritical pressure and temperature conditions to extract cannabinoid components”.
Earlier this year, the US District Court for the Western District of Texas construed the phrase “CO2 in liquefied form under subcritical pressure and temperature conditions” to require that both temperature and pressure be below their respective critical points which, according to Canopy, limited the claim scope to "only a portion of the subcritical region for liquid CO2”.
Based on the court’s construction and documents produced by GW on its process, Canopy determined it couldn’t prevail on the issue of infringement. The parties then requested that the court enter a final judgment of non-infringement, subject to the right to appeal.
“The District Court’s narrowing construction constitutes reversible error, because it excludes embodiments expressly disclosed in the specification and deviates from the plain-and-ordinary meaning of the claim language,” said Canopy in its opening brief.
Canopy argued that the Texas court had erred in adding the requirement that the claimed liquefied CO2 must have both subcritical pressure and subcritical temperature.
It added that the lower court’s construction added a single word to the actual claim language (the word ‘both’), “indicating that the plain-and-ordinary meaning of the claim language as written did not establish this limitation”.
“Rather than construe the disputed phrase, the district court merely repeated it and then supplemented it with additional language to narrow its meaning,” said the brief.
Canopy has asked the Federal Circuit to review the claim construction and to modify the “overly narrow claim construction”.
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