Is there a sound basis for prediction of utility of the claims or some as pleaded in the defence?
Canada (Federal), Canada
The following excerpt is from Eli Lilly and Co. v. Apotex Inc., 2000 CanLII 16043 (FC):
I equally accept the plaintiffs" position with respect to the plea that there was no sound basis for prediction of utility of the claims or some of them as pleaded in the defence. Inutility as pleaded here is a form of overclaiming and, equally in my view, must be tested against an objective standard, namely do the claims go beyond what could have been predicted, thereby claiming more than what was invented; I accept what was said by Mr. Justice MacGuigan in Merck v. Apotex1:
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