Patents
Application to prohibit Minister of Health from issuing notice of compliance to Apotex Inc. until expiry of Canadian Patent No. 2201967 ('967 patent)—Apotex challenging validity of '967 patent on several grounds—Applicants failing to show allegation '967 patent invalid as anticipated, obvious, lacking utility, not justified—Apotex arguing “invention” claimed in '967 patent not invention but “mere discovery”—No need to create precedent for new category of “mere discovery”—Apotex also challenging use of word “about” in claims—Purposive construction of patent indicating “about” being plus or minus 10 percent should be limited to particle size, not other definitions such as percentage, dosage—Application dismissed—Many allegations of invalidity raised but not pursued, including Patent Act, R.S.C., 1985, c. P-4, s. 53—S. 53 raising implication of fraud which, if raised and not pursued, should bear cost penalty—Costs, disbursements taxed and allowed to Apotex reduced by 25 percent.
Shire Biochem Inc. v. Canada (Minister of Health) (T-756-06, 2008 FC 538, Hughes J., judgment dated April 25, 2008, 46 pp.)