Supreme Court Of Canada Considers Patent Sufficiency Requirements

Canada Ltd. v. Pfizer Canada Inc.
Drug: VIAGRA^®

The Supreme Court issued its decision on November 8 in the much-anticipated patent case involving VIAGRA sildenafil. The Court allowed the appeal, finding the allegations of invalidity to be justified. The decisions of the Trial Division and the Federal Court of Appeal prohibited the Minister of Health from issuing a Notice of Compliance. Our summary of the decision of the Federal Court of Appeal can be found here.

The main issue in this case was "whether Pfizer failed to properly disclose its invention when it obtained the patent for Viagra" pursuant to s. 27(3) of the Patent Act. The Court considered the concept of the patent bargain and held that sufficiency lies at the very heart of the system. The Court considered the traditional questions for sufficiency: "What is your invention?" and "How does it work?" and held that these questions are relevant. However, the description must also enable a person skilled in