PATENTS Practice
Appeal from Federal Court decision (2007 FC 837) allowing motion to strike paragraphs of defense and counterclaim pertaining to issue of “inventorship”—Appeal allowed—Allegations in impugned paragraphs not attempting to relitigate issue determined by consent order—As not party to proceedings leading to consent order, Apotex could not challenge consent order—Whether Apotex can raise issue of “inventorship” as ground of invalidity depending on interpretation of pre‑1989 Patent Act, R.S.C., 1985, c. P‑4, s. 61(1)(b)—Question not whether one interpretation preferable to other, but whether meaning of paragraph 61(1)(b) foregone conclusion—Federal Court Judge erred in reaching own conclusion on interpretation—Apotex’ proposed interpretation of s. 61(1)(b) neither tenuous nor devoid of merit—Not plain and obvious Apotex cannot succeed on issue raised in impugned paragraphs.
Laboratoires Servier v. Apotex Inc. (A‑364‑07, 2007 FCA 350, Nadon J.A., judgment dated 1/11/07, 20 pp.)