Federal Court Revisits The Issue Of Medical Uses

In AbbVie Biotechnology Ltd v Canada (Attorney General), 2014 FC 1251, rendered December 22, 2014, the Federal Court allowed AbbVie's appeal from a refusal of the Commissioner of Patents to grant Canadian Patent Application No. 2,385,745. The refusal was on the basis that the claims at issue cover a method of medical treatment (Decision #1362). The Court held the claims - for use of a known drug, HUMIRA (anti-TNF alpha antibodies) at a specified fixed amount (40 mg) and fixed interval (bi-weekly) - were patentable.

As no facts or claim construction were in dispute, the issue was solely a question of law, namely the Commissioner's determination of "the statutory limits of patentable subject matter... - that is, the nature and extent of the prohibition against methods of medical treatment", and more specifically, the application of principles derived from the jurisprudence.

The prohibition against...