PATENTS |
Infringement |
Glaxo Group Ltd. v. Canada (Minister of National Health and Welfare)
A-233-00
2001 FCA 96, Richard C.J.
2/4/01
12 pp.
Appeal from Trial Division order ((2000), 6 C.P.R. (4th) 73) dismissing application for prohibition by appellants (Glaxo) under Patented Medicines (Notice of Compliance) Regulations, s. 6(1)--Glaxo seeking to prohibit Minister of Health from issuing to Apotex Inc. Notice of Compliance for medicine cefuroxime axetil in tablet form until expiry of Glaxo's Canadian Letters Patent Nos. 1,240,313 (`313 Patent) and 1,282,331 (`331 Patent)--Apotex alleging no claim for medicine itself, no claim for use of medicine would be infringed by making, constructing, using, selling by it of tablets containing cefuroxime axetil--Having found cefuroxime axetil used by Apotex not, on evidence before him, substantially amorphous, Trial Judge properly concluded `313 patent not infringed--Appellate intervention with respect to findings of fact warranted only where lower court made palpable, overriding error--Trial Judge properly construed claims, considered ample body of evidence, concluded on balance of probabilities appellants had not discharged burden of proof to establish allegation of non- infringement not justified--In so finding, Trial Judge did not make palpable, overriding error to warrant allowing appeal--Glaxo had other means available to compel necessary information--Regulations, s. 6(7) providing mechanism by which first person such as Glaxo may compel production of relevant portions of Amended New Drug Submission--Open to Glaxo to pursue remedy, to secure access to information sought--Glaxo failed to do so, now seeks to avoid consequences of failure--Trial Judge holding Notice of Allegation, Further Disclosure provided sufficient legal, factual basis for allegations made--Finding cefuroxime axetil not substantially amorphous--Thus, `313 patent not infringed--Appeal dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6 (as am. by SOR/98-166, s. 5).