On September 16, 2015, the Federal Court of Appeal dismissed Actavis’s appeal from a judgment of the Federal Court prohibiting the Minister of Health from issuing a notice of compliance for Actavis’s generic VIGAMOX. In the decision below (2014 FC 462) Justice Phelan dealt with three patents, Canadian Patent Nos. 1,340,114, 2,342,211 and 2,192,418. The prohibition applications with respect to the 418 and 211 Patents were dismissed, whereas the prohibition application for the 114 Patent was granted. While the 418 Patent was not appealed the appeal of the 211 Patent was dealt with under separate reasons, 2015 FCA 191 (see our post here).
On appeal, Actavis argued that Justice Phelan erred in making multiple, inconsistent, and ultimately incorrect holdings, which amounted to errors of law on the construction of the promise. The Federal Court of Appeal dismissed Actavis’s arguments regarding construction of the promise noting that a judge is entitled to prefer one expert’s evidence over another. The FCA held that a full reading of the Judge’s reasons demonstrates that he properly understood and applied the law and his preference for the impugned evidence was based on several legitimate factors. Any slight differences in his wording can be understood in a coherent manner and were inconsequential.
Actavis also argued that Justice Phelan made a palpable and overriding error by holding that data omitted from the patent did not make a sound prediction impossible. The Court of Appeal held that the issue of omitted data was before Justice Phelan who found there was no evidence that any data had been excluded for an improper purpose and that inclusion of this data would not have impacted how the skilled person would have read the 114 Patent.
The Court of Appeal also upheld Justice Phelan’s finding regarding obviousness, stating that Actavis failed to demonstrate a palpable and overriding error, noting:
 In sum, I find that the appellant has essentially attempted to re-argue its case by pleading evidence that it would have liked the Judge to prefer, in the hopes of having our Court overturn the factual determinations made by the Judge. This amounts to asking our Court to re-weigh evidence. This is not our role and the appellant’s challenge in this regard must also fail.
A copy of the Court of Appeal’s Reasons for Judgment can be found here.