Janssen v. Pharmascience
We successfully represented Janssen in the Federal Court of Appeal on this appeal relating to infringement of the patent covering Janssen’s INVEGA SUSTENNA® (paliperidone palmitate) once-monthly injection product for the treatment of schizophrenia.
On summary trial, the trial judge found that Pharmascience would induce infringement of Janssen’s patent, despite not selling one of the three doses in the claimed dosing regimen. On appeal, Pharmascience argued that there would be no infringement by direct infringers (physicians and patients), because the dose that Pharmascience was not seeking approval for would be supplied by Janssen and, therefore, those users had an implied licence to use the Janssen product in combination with the Pharmascience product.
The Court of Appeal rejected this argument, finding that implied licence only applies when the entire patented combination is sold by the patentee; implied licence does not apply when only one element of the patented combination is sold by the patentee.