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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Case: AstraZeneca Canada Inc. v. Apotex Inc. (SCC file no. 36654)
Drug: NEXIUM® (esomeprazole)
Nature of case: Leave to Appeal of a judgment on invalidity of Canadian Patent No. 2,139,653 (‘653 Patent)
Successful party: AstraZeneca Canada Inc.
Date of decision: March 10, 2016
On March 10, 2016, the Supreme Court of Canada (SCC) granted AstraZeneca Canada Inc. (AstraZeneca) leave to appeal an order of the Federal Court of Appeal (FCA) affirming the Trial Judge’s finding that the ‘653 Patent is invalid for lack of utility (FCA Decision).
The FCA Decision contains an extensive discussion on the applicable standard for patent utility in Canada, including the "promise" doctrine. This is an opportunity for the SCC to provide guidance on an issue that has been the subject of much debate over recent years.
Apotex Inc. (Apotex) sought to impeach the ‘653 Patent on the basis of lack of utility, anticipation and obviousness. Justice Rennie held that the promised utility of the ‘653 Patent (compounds provide improved pharmacokinetic and metabolic properties with an improved therapeutic profile) was not demonstrated nor soundly predicted at the Canadian filing date. Apotex’s allegations of obviousness and anticipation were dismissed.
AstraZeneca appealed Justice Rennie’s decision on the following grounds: (a) he failed to consider the patent’s promised utility on a claim by claim basis; (b) he failed to construe the utility of the claims in a manner consistent with the inventive concept and; (c) he failed to apply a purposive construction to the promise of utility. The Federal Court of Appeal determined that the trial judge properly construed the “promise” of the patent by considering the patent as a whole through the eyes of the skilled reader, and properly considered the difference between “goals” and “promises”. The appeal was dismissed.
The Supreme Court of Canada Case Summary may be found at:
http://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=36654
Our summary of the Federal Court of Appeal decision may be found here.
The Federal Court decision may be found at:
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/72284/index.do
Video
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Publication
After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
Publication
On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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