Tuesday, June 18, 2019

Professional Judgment and Subject Matter

Aux Sable Liquid Products LP v JL Energy Transportation Inc 2019 FC 581 Southcott J

A final point raised by Aux Sable concerns patentable subject matter. Southcott J held Claims 9-10 to be invalid as being addressed to non-patentable subject matter, on the basis that “practice of claims 9-10 to a successful outcome within the ranges of compositions prescribed does depend on the exercise of professional judgment” [238]. In so holding, Southcott J relied on the dosage range cases such as Axcan 2006 FC 527 [232], [238]. I have criticized this line of cases at some length in this post, and I note that in Cobalt v Bayer [YAZ] 2015 FCA 116 [101] the FCA remarked that my posts had “forcefully advanced arguments of policy and logic against the current position.” Southcott J’s discussion was very brief — a single paragraph — and he remarked that “little turns on the outcome of this analysis,” as he had already held these claims invalid for other reasons [238]. Consequently, Aux Sable does not add any weight to the existing line of cases, particularly in light of the concerns expressed by the FCA.

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