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Appeal from Federal Court decision (2009 FC 1249) dismissing appeal from Commissioner of Patents refusal to grant patent for medicinal compound because patent already issued for same compound made by particular process—That patent (parent patent) issued in 1987 when patents could not be issued for medicinal compounds but process-dependent patents were possible—Appellant’s current patent application for medicinal compound materially identical to its process-dependent patent issued in 1987—Commissioner’s refusal based on prohibition of “obviousness” double patenting, appellant’s compound not patentably distinct from claim in parent product—Issue: whether “obviousness” double patenting applicable to patent application with respect to product, when process-dependent patent already issued—Appellant submitting case law allowing patent for compound, even though process-dependent patent already issued in respect of materially identical compound, relying principally on Aventis Pharma Inc. v. Mayne Pharma (Canada) Inc., 2005 FC 1183—Federal Court not intending therein to decide that rule against “obviousness” double patenting excluding claim for compound when process-dependent patent with respect to same compound already issued—However, if deciding so, Aventis Pharma Inc. v Mayne Pharma (Canada) Inc. should not be regarded as authority for such proposition—Claim for compound materially identical to subject of process-dependent patent exhibiting no inventive ingenuity or novelty—Commissioner correctly denying appellant’s patent application—Appeal dismissed.  

Bayer Schering Pharma Aktiengesellschaft v. Canada (Attorney General) (A-6-10, 2010 FCA 275, Evans J.A., judgment dated October 20, 2010, 16 pp.)