Jurisprudence récente de la Cour fédérale sur un brevet “obvious to try”

Extrait: The main problem with the ‘772 Patent is that it is an “obvious to try” patent.

 Sanofi-Aventis Canada Inc. v. Ratiopharm Inc., 2010 FC 230, (March 5, 2010)

III. ISSUES

[24] The issues in this proceeding are:

(a) What is the proper claim construction?

(b) Is the ‘772 Patent valid or has Ratiopharm proven invalidity on one or more grounds of anticipation, obviousness, ambiguity of claims, claims broader than invention, inoperability/inutility, sound prediction, insufficiency of disclosure and double patenting?

(c) Does Ratiopharm’s proposed drug infringe Sanofi-Aventis’ patent more specifically does Ratiopharm’s tablet contain a diluent?

Si vous avez besoin d’une interprétation de “about”

39] The term “about” is not defined in the specifications, as is often the case with performance patents. Absent some indication of the range of “about” specified in the patent, the expert evidence which could help resolve the issue is inconsistent as to what the range should be.

[40] Sanofi-Aventis argued that it was “within 10%” and while Ratiopharm disputed that, Dr. Lee acknowledged that 10% was used in the U.S Pharmacopeia and he used the 10% rule both in some of his patents and in his affidavit.

[41] The best evidence suggests that a skilled person would more likely than not refer to such texts. The Court accepts that “about” means “within 10%”.

 

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