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Supreme Court of Canada To Hear AstraZeneca’s Esomeprazole Appeal

On March 10, 2016, the Supreme Court of Canada granted AstraZeneca’s application for leave to appeal the decision of the Federal Court of Appeal dismissing AstraZeneca’s appeal of a trial decision holding that Canadian Patent No. 2,139,635 was invalid for lack of utility. The 635 Patent is generally directed  to optically pure salts of esomeprazole.

Briefly, the issues before the FCA was whether the Trial Judge had erred in construing the promise of the 635 Patent, specifically by (1) not considering the promised utility on a claim-by-claim basis; and (2) construing the promised utility in a manner that was inconsistent with the claims’s inventive concept (see our previous post here).

Consistent with Supreme Court of Canada practice, no reasons were provided in allowing AstraZeneca’s leave application.

A copy the underlying decision of the Court of Appeal may be found here.