The Date For Assessing Disclosure Sufficiency – Is This An Open Issue?

Recently, the Federal Court of Appeal released its decision in Pharmascience Inc. v. Bristol-Myers Squibb Canada Co., 2022 2022 FCA 142 142 (the "Decision"). The Decision touches on various issues, but I want to focus on one: the relevant date for assessing disclosure sufficiency.

The Decision results from consolidated appeals of Zinn J.'s decision in Bristol-Myers Squibb v. Pharmascience and Sandoz, 2021 2021 FC 1 1, which found Canadian Patent nos. 2,461,202 ("the '202 patent") and 2,791,171 ("the '171 patent"), Bristol-Myers Squibb's patents for apixaban, to be valid. The '202 patent claims the compound apixaban and its use in treating thromboembolic disorders (e.g., stroke), and the '171 patent claims formulations of apixaban. Below, I discuss the disclosure sufficiency attack on the '202 patent.