tag:blogger.com,1999:blog-1454051731189268002.post2162255109605294909..comments2024-03-27T11:29:23.559-03:00Comments on Sufficient Description: Reasonable Expectation of Success: Between Boston College Doug Flutie “Hail Mary” and Wayne Gretsky “Open Net Shot”Unknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-1454051731189268002.post-24186046388570665412021-01-21T09:41:32.095-04:002021-01-21T09:41:32.095-04:00In paragraph 66 of Apotex v. Sanofi:
“[66] For a f...In paragraph 66 of Apotex v. Sanofi:<br />“[66] For a finding that an invention was “obvious to try”, there must be evidence to convince a judge on a balance of probabilities that it was more or less self-evident to try to obtain the invention. Mere possibility that something might turn up is not enough.”<br />Rothstein J seems to be paraphrasing Lord Justice Jacob’s comments from Saint-Gorbain set out in the immediately preceding paragraph 65:<br />“[65] Mere possible inclusion of something within a research programme on the basis you will find out more and something might turn up is not enough. If it were otherwise there would be few inventions that were patentable. The only research which would be worthwhile (because of the prospect of protection) would be into areas totally devoid of prospect. The “obvious to try” test really only works where it is more-or-less self-evident that what is being tested ought to work.”<br /><br />“Really only works” implies that it is more than just a factor. Doesn’t “more or less self-evident to try to obtain the invention” go to motive, which is separately dealt with in paragraph 69.3?<br />Peter Ghttps://www.blogger.com/profile/03352686204387152116noreply@blogger.com