The Federal Court of Appeal recently released a decision (Agracity Crop v. Upl Na Inc., 2024 FCA 133) dismissing an appeal by Agracity Crop & Nutrition Ltd. (“Agracity”). The Federal Court had ruled that claims of Canadian Patent No. 2,346,021 (the “’021 Patent”) were not invalid and were infringed by Agracity. Agracity appealed the Federal Court’s ruling on invalidity based on anticipation and obviousness.
The ‘021 Patent was directed to flucarbazone sodium as a selective herbicide (i.e. a herbicide that targets weeds only with minimal injury to the surrounding crop). Prior publications Canadian Patent No. 2,064,636 (the “’636 Patent”) and its corresponding U.S. patent disclosed flucarbazone sodium as a herbicide, but not as a selective herbicide.
On appeal, Agracity argued that the Federal Court misapplied the legal test for anticipation, namely that the ‘636 patent both disclosed and enabled the invention claimed in the ‘021 Patent. Agracity disputed that flucarbazone sodium was unknown as a selective herbicide, as portions of the ‘636 Patent stated that substances “contemplated therein ‘act as total or selective herbicides depend[ing] essentially on the amount used’” and that certain compounds encompassing flucarbazone sodium were “suitable for the selective control of certain weeds in certain crops”.
The Court of Appeal disagreed, stating that the ‘636 Patent did not indicate that flucarbazone sodium was among the herbicides with selective properties, and that the compounds of the ‘021 Patent were selective due to chemical structure, as opposed to the amount used as disclosed in the ‘636 Patent. Accordingly, the Court of Appeal agreed with the Federal Court that the prior publications did not disclose subject matter that if performed would necessarily result in infringement of the ‘021 Patent and thus did not meet the disclosure requirement of the test for anticipation.
On obviousness, Agracity argued that the Federal Court improperly considered the inventive concept as a whole, and not of the claims individually, and also improperly imported elements of the anticipation analysis into the obviousness analysis. The Court of Appeal held that these arguments were not supported by a fair reading of the Federal Court’s decision and dismissed these arguments as well.
The decision is reported here.