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ARTICLE · 29 APRIL 2016

Eli Lilly's Cialis® Patent Withstands Double Patenting And Utility Challenges On Appeal

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The Federal Court of Appeal has provided guidance on the law of obviousness-type double patenting in dismissing Mylan's appeal pertaining to Eli Lilly's Canadian Patent 2,226,784, covering Lilly's drug Cialis®.

CanadaIntellectual Property
Alex Gloor
Alex Gloor
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The Federal Court of Appeal has provided guidance on the law of obviousness-type double patenting in dismissing Mylan's appeal pertaining to Eli Lilly's Canadian Patent 2,226,784, covering Lilly's drug Cialis® (tadalafil).1 The FCA's decision affirmed the result set out in de Montigny J.'s (as he then was) decision of January 7, 2015 (the "Trial Decision")2 in which Mylan's allegations of lack of utility and obviousness-type double patenting were rejected.

Obviousness-Type Double Patenting

Rennie JA, writing for the unanimous panel, discussed three legal issues with respect to obviousness-type double patenting. First, obviousness-type double patenting was distinguished from traditional "obviousness" attacks brought pursuant to section 28.3 of the Patent Act. The FCA held that "obviousness" per se is directed at whether there is an "invention" at all, whereas obviousness-type double patenting looks at whether an otherwise valid patent is simply "an extension of

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