Supreme Court denies Eli Lilly’s Evista appeal
The National Post and Bloomberg report that the Supreme Court has denied leave in Eli Lilly Canada Inc., et al. v. Apotex Inc., et al. This is a loss for Eli Lilly’s portfolio of brand name drugs in Canada and represents a victory for generic drug maker Apotex.
The Federal Court of Appeal’s short reasons will stand, affirming Justice Hughes’ decision that the patent at issue was invalid. The case turned on whether the invention, being a new use for an old compound (a selection patent) was “soundly predicted”. Justice Hughes said,
“The person skilled in the art was given, by way of disclosure, no more than such person already had. No “hard coinage” had been paid for the claimed monopoly. Thus, for lack of disclosure, there was no sound prediction.”
Following this decision, the law on sound prediction in Canada, which requires a higher degree of disclosure in the case of selection patents than other patents, remains sound indeed.
