Blog

Lilly’s ZYPREXA leave application dismissed

olanzapine

On May 16, 2013 the Supreme Court of Canada dismissed Eli Lilly’s leave application seeking leave to appeal the Judgment of the Federal Court of Appeal dismissing Lilly’s appeal of the Judgment of Justice O’Reilly, holding that Canadian Patent No. 1,075,687 was invalid on the basis that that the utility could not have been soundly predicted.

Background

In  2007 Lilly sued Novopharm Limited for infringement. In 2009, Justice O’Reilly dismissed Lilly’s infringement claim on the basis that, among other things, that the selection patent was invalid for a lack of sound prediction.  On appeal, the Federal Court of Appeal held that Justice O’Reilly had erred by failing to provide any foundation for the construction of the patent’s promise and remanded the matter back to reconsider the issues of utility and sufficiency of disclosure.  On remand, Justice O’Reilly again concluded that the 687 Patent patent was invalid for lack of sound prediction and this was affirmed by the Court of Appeal  in 2012 without substantive reasons.

On May 13, 2013, Lilly’s application for leave to appeal was subject to an oral hearing pursuant to paragraph 43(1)(c) of the Supreme Court Act.  The oral hearing was heard by Justices Rothstein, Cromwell and Moldaver.  A webcast of the oral hearing may be found here.

Consistent with Supreme Court practice, the Court did not provide reasons for dismissing Lilly’s application for leave to appeal.

A copy of the Judgment dismissing Lilly’s application may be found here.