The Supreme Court of Canada abolished the Promise Doctrine over a year ago1 and, as discussed in our blog, it marked an important course correction for Canadian courts in the assessment of utility of a patent under section 2 of the Patent Act. In the past ten years, several patents notably in the biopharmaceutical industry were invalidated solely based on the promise of the patent doctrine and long before these pharmaceutical patents were due to expire. Although the Supreme Court of Canada's AstraZeneca decision last year did not have an instant impact on the promise doctrine, we predict the doctrine will soon vanish from patent litigation. Here's why.
Canadian Case Law Developments
In the post-AstraZeneca world,2 Canadian courts have been wary of breathing life into the promise doctrine, signaling the courts' commitment to preventing the doctrine from "resurfac[ing] under another principle without clear language to do so" (see Hospira at para 258). In several cases, the courts have upheld patents even where not all the promised utilities of a claim had been demonstrated or...
