Valeant Canada LP/Valeant Canada SEC v Generic Partners Canada Inc 2019 FC 253 Fothergill J
2,412,671 / NOC
Valeant v Generic Partners is the second case released this week, and the second to raise no
interesting issues of law. Valeant’s 671 patent relates to a controlled release dosage form for
drugs requiring gastric retention. One known mechanism for controlled release was a polymeric
matrix which swells in the stomach so the dose cannot exit into the small intestine [2]. It turns out
that some of these forms, particularly those with an elongated shape for easy swallowing, could
nonetheless partially exit if the pill became lodged with the long dimension protruding into the
pylorus (the opening to the small intestine) [3]. The 671 patent comprises a swellable dosage
form with a particular shape that avoids this problem.
In this NOC proceeding, Generic Partners conceded infringement of several claims, and attacked
the validity of the 671 patent on the basis of anticipation, obviousness, double patenting and
insufficiency. The main attacks were anticipation and obviousness. These both failed on the
facts, essentially because nothing in the prior art suggested that shape was a central component of
gastric retention [71]-[72], [106]-[108]. Rejection of the double patenting attack followed
directly from the conclusion on anticipation [111], and Fothergill J easily dismissed the
insufficiency allegation [116].
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