Patents
Practice
Appeal from Federal Court judgment (2007 FC 797) quashing Minister of Health’s decision to delete patent from register—Notice of compliance (NOC) for drug issued in 1995—Application for patent filed in 1997—Supplement to new drug submission (SNDS) seeking approval for new indication filed in 2000—Patent issued in July 2006—Patent list filed within 30 days—Patent not eligible for inclusion on patent list with respect to original submission for NOC because patent application date not preceding filing date of original submission—But eligible for inclusion on patent list with respect to SNDS as application date preceding filing date of SNDS—October 2006 amendment to Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 4(3)(d) requiring patent to contain claim for changed use of medicinal ingredient identified in SNDS against which filed—Minister correctly holding Regulations applied to patent, patent not containing such claim, ineligible for listing as of date of examination, liable to be deleted—By using filing date of patent list as reference date for application of s. 4, legislator specifically allowed for kind of re-examination occurring herein—Federal Court erred in accepting expert opinions as evidence patent contained claim for changed use of medicinal ingredient—Evidence only showed patent eligible for listing against original submission, but for fact date of submission preceded date of patent application—Appeal allowed.
Abbott Laboratories Ltd. v. Canada (Attorney General) (A-383-07, 2008 FCA 244, Pelletier J.A., judgment dated June 11, 2008, 18 pp.)