An internationally recognized requirement for patentability is
that an invention must be "useful." Typically, the
threshold of utility is easily met for inventions that have
commercial applicability, such as a drug candidate. Developments in
Canadian patent jurisprudence over the last decade; however, have
raised the utility requirement for some patents under the so-called
"promise of the patent" doctrine. According to this
doctrine, if a patent sets out an explicit promise of utility, the
patent will be void if it does not meet this promised utility. The
Federal Court of Appeal (FCA) in Eli Lilly Canada v
Novopharm, 2010 FCA 197 describes the heightened utility
requirement:
Where the specification does not promise a specific result, no
particular level of utility is required; a "mere
scintilla" of utility will suffice. However, where the
specification sets out an explicit "promise", utility
will be measured against that promise. The question is whether
