Still Safe — The Experimental Use Exception To Anticipation

Canada's laws provide a one-year grace period for public disclosures by the applicant (or by a person who obtained knowledge of an invention from the applicant) calculated from the Canadian filing date. The particulars of Canada's grace period are detailed in our October 28, 2013 IP Update. In the recent decision in Bayer Inc v Apotex Inc ("YAZ"), 2014 FC 436, the Federal Court confirmed that a further exception exists under Canadian law for disclosures outside the grace period that are made for the purpose of bona fide experimentation.

Bayer is the owner of Canadian Patent No. 2,382,426 (the "'426 Patent") relating to pharmaceutical compositions comprising drospirenone and ethinylestradiol sold in Canada under the brand name "YAZ". Bayer brought an application to the Federal Court to prohibit the Minister of Health from issuing a Notice of Compliance to Apotex Inc. under the NOC Regulations in respect of Apotex's proposed distribution of birth control tablets