Amgen's Cinacalcet Application Dismissed Based On Failure To Meet Selection Patent Criteria

Justice Phelan has dismissed an application by Amgen to prohibit the Minister of Health from issuing a Notice of Compliance to Mylan for Amgen's secondary hyperparathyroidism medication cinacalcet (SENSIPAR®). In reasons dated Nov. 3, 2015, Justice Phelan agreed with Mylan's allegations that Amgen's Canadian Patent 2,202,879 (the "879 Patent) was not a selection patent, and that the claim at issue was not novel or inventive.

The 879 Patent was filed in October 1995 and contained claims to various compounds, including a claim specific to the cinacalcet compound (claim 5). Claim 5 was the only claim at issue. Critical in this proceeding was a different Amgen patent with the same inventors. Canadian Patent 2,115,828 was published in 1993 and disclosed an "enormous" genus of compounds that encompassed cinacalcet. Both the 879 and 828 Patents stated that the claimed compounds were active at calcium receptors in the body.