CA: CAF confirme la validité de la doctrine “Saccharine” en brevets

Décision Eli Lilly Canada Inc. v. Apotex Inc. 2010 FCA 240

Extrait pertinent:

[17]           Apotex cross-appeals the Judge’s finding that it infringed Lilly’s patents when, prior to June 3, 1998, it imported bulk cefaclor from overseas suppliers who had produced it from an intermediate compound made by processes covered by Lilly patents. Apotex says that, by finding that the importation of cefaclor breached Lilly’s rights under the Patent Act, the Judge extended the scope of protection beyond the use of the claimed invention (here, the processes for making the intermediate product), and gave an extraterritorial reach to the Act that Parliament should not be taken to have intended.

 [18]           After thoroughly canvassing the relevant jurisprudence, the Judge rejected Apotex’ argument, holding that it has been settled law in Canada for over a hundred years that a process patent can be infringed by the importation, and use and sale in Canada, of a product manufactured abroad by another person using the patented process. She pointed out that the Supreme Court of Canada had recently endorsed the rule, known as the “Saccharin doctrine” (Saccharin Corporation v. Reitmeyer & Co., [1902] 2 Ch. 659 (Eng. CA.)): see Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, [2004] 1 S.C.R. 902 especially at para. 44.

 [19]           The Judge also rejected Apotex’ alternative argument that, if relevant at all, the Saccharin doctrine should not apply if “material changes” are made to the article produced by the patented process prior to the importation of the ultimate product. She applied (at paras. 326-329) the present law, which requires only that the patented process played an “important part” in the manufacture of the imported product, and concluded that it did.  

 [20]           We se no legal error in the Judge’s analysis of the state of the law in Canada on either of these issues.


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