The Federal Court of Appeal has affirmed Justices Hughes’ decision relating to the Order of prohibition issued in respect of Canadian Patent No. 1,338,937 (the ‘937 Patent) and Patent No. 1,338,895 (the ‘895 Patent).
Teva in its appeal had argued that Justice Hughes had “[s]ubstituted a higher standard for determining obviousness” and had “[f]ailed to properly ascertain the state of the art and to identify the differences between the inventive concept and the state of the art as required by step 3 of the “Sanofi test” (See paragraph 3 of the FCA decision).
The FCA disagreed with Teva on both points.
Teva further alleged in its appeal that “the Judge misconstrued and misapprehended the evidence and appears to have ignored some important evidence in respect of the prior art.” (See paragraph 5 of FCA decision). The FCA however found that Teva had “failed to establish that the Judge made an overriding and palpable error in his appreciation of the evidence.” (See paragraph 10 of FCA decision). The FCA noted in its decision that the “Judge is presumed to have considered all the evidence before him. This presumption is not rebutted simply because the Judge does not refer to particular pieces of prior art (Housen v. Nikolaisen, 2002 SCC 33,  2 SCR 235 at paragraph 46). Moreover, in this case, there are clear indications that the Judge was alert and alive to the issues raised, but in the end, simply did not agree with the appellant’s analysis of the evidence.” (See paragraph 12 of FCA decision).
The decision can be found at: