Sandon Shogilev

The Court allowed AstraZeneca’s appeal and held the patent ‘promise doctrine’ is not the correct approach to utility under s. 2 of the Patent Act.

It found the doctrine improperly imports disclosure obligations into the utility requirement and wrongly invalidates patents when one of multiple promised uses is unproven.

The correct test asks whether the claimed subject-matter has at least one practical use related to that subject-matter, demonstrated or soundly predicted at filing.

Applying that test, the ‘653 patent had sufficient utility and was not invalid.

The defendant, Apotex, brought a motion to strike portions of the plaintiffs' statement of claim and response to a demand for particulars.

The underlying action alleged that Apotex breached a settlement agreement and a duty of good faith by selling an extraordinary volume of a generic drug during a six-month market withdrawal period.

Apotex argued that one of the plaintiffs was an improper party and that the claim for breach of good faith had no reasonable prospect of success.

The court dismissed the motion, finding it was not plain and obvious that the claims would fail, noting that the law on the duty of good faith in contract performance is still developing.

The Court considered whether farming losses were fully deductible where a taxpayer's law practice and horse-racing farming business together formed a chief source of income under s. 31(1) of the Income Tax Act.

It held that prior precedent had improperly narrowed the statutory combination test, overruled that aspect of Moldowan, and confirmed a contextual approach examining capital, income, time, and the taxpayer's mode of living.

Applying that approach, the Court found no basis to disturb the trial findings that the taxpayer significantly emphasized both activities, so the farm-loss limitation did not apply.

The Crown's appeal was dismissed with costs.