Bristol-Myers Squibb Canada v. Apotex Inc., 2017 FC 296
(dasatinib/SPRYCEL" – Justice Manson)
In Canada, double patenting can be a difficult hurdle to
overcome; the claims of a later-issued patent must be
"non-coterminous" and "patentably distinct"
from the claims of a co-owned earlier-issued patent. There are no
procedural mechanisms in place, such as terminal disclaimers, to
remove double patenting issues. Double patenting can be found
between parent and divisional applications, which share filing and
expiry dates, and between applications that are not directly
related, but claim similar subject matter.
Double patenting is often raised in litigation, and the relevant
date for assessing double patenting has been the subject of much
recent debate. The choice has generally come down to one of three
dates: the priority date of the earlier-issued patent, the priority
date of the later-issued patent and the publication date of the
later-issued patent. Four recent
