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27 November 2017
The Federal Court of Appeal recently ruled in Apotex Inc v Pfizer Inc(1) that Pfizer's failure to pay the correct issue fee did not render its patent void. In the context of a Section 8 case relating to latanoprost (Xalatan), Apotex had brought a partial summary judgment motion to have Pfizer's Patent 1,339,132, which Pfizer had relied on in its defence, declared void for failure to comply with Section 73 of the Patent Act 1989. The Federal Court of Appeal dismissed Apotex's appeal of the Federal Court's decision,(2) citing the general principle that "pre-patent issuance defects in the administrative process for applying for a patent cannot be relied upon by an alleged infringer to render a patent void".
For further information on this topic please contact Kevin Siu at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (email@example.com). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
(1) 2017 FCA 201.
(2) For further details please see "Federal Court holds issued patent valid despite erroneous issue fee payment".
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