Patent claims are frequently analogized to "fences"
and "boundaries", which delineate the extent of the
patent's monopoly. Placement of those boundaries is critical to
a patent's enforceability, and ultimately its value. As noted
by Canada's Supreme Court, "...if, in order to guard
against possible invalidity, some area is left open between what is
the invention as disclosed and what is covered by the claims, the
patent may be just as worthless as if it was
invalid".1 A recent decision issued by the Chief
Justice of the Federal Court of Canada in Allergan Inc. v.
Sandoz Canada Inc., 2020 FC 1189
("Rapaflo") illustrates this
challenge.
In Rapaflo, Allergan, Inc.
("Allergan") brought an action against
Sandoz Canada Inc. ("Sandoz") under
Canada's Patented Medicines (Notice of Compliance)
Regulations (the
"Regulations"). Allergan sought
a declaration that Sandoz's generic silodosin product would
infringe Canadian Patent No. 2,507,002 (the "002
Patent"). Silodosin
