November 12, 2020
As previously reported by the Goodmans IP Team, earlier this year, in thorough and comprehensive reasons, Justice Southcott of the Federal Court invalidated Amgen's key patent relating to Neupogen® on the basis of obviousness in Amgen v. Pfizer, 2020 FC 522.
On appeal, Amgen submitted that the Federal Court committed a reviewable error in applying the test for obviousness, namely, that it used the wrong legal standard as it applied the various factors in the test for obviousness.
Last week, the Federal Court of Appeal (2020 FCA 188) dismissed Amgen's appeal from the bench and provided short accompanying reasons.
The Federal Court of Appeal was not satisfied that the Federal Court erred and noted "that the obviousness test is flexible and must be applied contextually to the facts and circumstances of each claim". The Federal Court of Appeal commended Justice Southcott's reasons as being "worthy of recognition for their attention to detail, their careful analysis of the rival experts and the thorough analysis throughout".
The Federal Court of Appeal further concluded that, if it were to apply the test for obviousness to the evidence, as if it were a court of first-instance, it would reach the same result as the Federal Court.