Inside Game

In the past year, Canadian courts have issued a number of important decisions that have broad implications for pharmaceutical patents. The most significant of these may well be the Supreme Court of Canada’s landmark ruling in Sanofi-Synthelabo Canada Inc . v. Apotex Inc. In Sanofi, the court confirmed the legality of so-called selection patents and revamped the legal test for anticipation and obviousness. By doing so, the court aligned Canadian law more closely with the laws of both the United States and the United Kingdom. The bottom line is that the uniquely Canadian approach outlined by the court suggests that pharmaceutical patents will now be afforded greater protection in Canada, while further research into old discoveries will be rewarded if that research produces new inventions.

Fresh look at Selection Patents

The patent at issue in Sanofi (the so-called ’777 patent) is a “selection” patent. That is, it claims a specific compound, clopidrogrel bisulfate, which is also covered within the scope of an earlier “genus” patent, the so-called ’875 patent. Sanofi owned both patents. The ’875 patent disclosed 250,000 compounds, all of which were said to be useful in inhibiting platelet aggregation in the blood. The invention in the ’777 patent was said to be the selection of clopidrogrel (the dextro-rotary isomer), which was found to be less toxic and better tolerated than the levo-rotary isomer and the racemate. The same drug, clopidogrel, was claimed in both patents.