The appellant generic manufacturer challenged the validity of a patent claiming dosing regimens for a long-acting injectable antipsychotic on the basis that the claims were impermissible methods of medical treatment.
The majority held that methods of medical treatment remain unpatentable subject matter under s. 2 of the Patent Act because professional medical skill and judgment are not proper subject matter for a patent, notwithstanding the repeal of former s. 41(1).
It further held that the proper inquiry is whether the claimed invention fences in professional medical skill and judgment, assessed purposively and with substance over form.
Applying that test, the dosing regimens were patentable because, once the physician selected the regimen, implementation did not require individualized clinical judgment of the kind the doctrine protects.
The appeal was dismissed without costs, although two judges would have held that methods of medical treatment are not inherently unpatentable.
