Case Comment

Wellcome Foundation Ltd. v.
Apotex Inc.

citation(s): (1991) 39 C.P.R. (3d) 289 (F.C.T.D. per MacKay J.)

copyright 1997 Donald M. Cameron




The Decision

At pp. 336-337:

One must recall that the burden of proving invalidity rests upon the party alleging invalidity. Once registered, of course, a patent attracts the presumption of validity contained in s. 45 (formerly s. 47) of the Patent Act. The complaints going to the failure to provide a means of identifying the compounds said to be produced through the process claims of the patents in suit, indirectly impeach the operability of the reactions. It is another manner of arguing that even if the reaction proceeds, one has no way of knowing that the patent produces what it claims will be produced. At its best this argument raises a doubt that what is claimed to be produced is not produced. As such, the defendant's argument does not satisfy the element of proof required to displace the onus resting upon it.


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