Alcon Canada Inc. v. Actavis Pharma Company, 2015 FCA 191 (Boivin J.A., Dawson J.A., Webb J.A.)
September 16, 2015
Peter Wilcox, Marian Wolanski and Frederic Lussier of Belmore Neidrauer LLP for the Appellants Alcon Canada Inc. and Alcon Pharmaceuticals, Ltd.
Douglas N. Deeth and Heather E.A. Watts of Deeth William Wall LLP for the Respondents Actavis Pharma Company and The Minister of Health
This was an appeal of a PMNOC matter in respect of Canadian Patent 2, 342, 211 (‘211 Patent) for the drug Vigamox, an antibacterial eye drop used during cataract surgery. Its active ingredient is moxifloxacin, a fluoroquinolone antibiotic. The relevant claims were for the use of moxifloxacin in a particular concentration for treating or preventing ophthalmic infection.
At the trial level, the Court held that the patent did not disclose a new use for the old drug moxifloxacin at the claimed concentration ranges.
The standard of review for obviousness is palpable and overriding error. Citing Zero Spill (2015 FCA 115), to find an error on this standard, the error must be clear and fundamental going to the very core of the outcome of the case.
The Trial Judge agreed with the Respondent’s expert and held that at the relevant date, the three components of the claim were for the known compound moxifloxacin, the known use (ophthalmic infections) and the known concentration, and thus the combination only reflected the current state of the art, and the combination was suggested by a mosaic of prior art patents and publications.
The Court further commented on and dismissed the Appellants’ attempt to re-argue the evidence before the Trial Judge as being improper. It may be difficult to determine how incorrect factual findings of a Trial Judge can be successfully challenged on the palpable and overriding standard as a result.
By: Ken Clark, Aird & Berlis LLP