[2012] 4 F.C.R. D-7
Patents
Infringement
Application pursuant to Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 to prohibit Minister of Health from issuing notice of compliance (NOC) to respondent (Apotex Inc.) for topical ophthalmic product until expiry of Canadian Patent No. 2440764 ('764 patent)—Respondent alleging invalidity of '764 patent on grounds of anticipation, obviousness—Principal issue whether applicants having discharged burden of demonstrating that respondent’s allegation of invalidity not justified—Previous decision in Allergan Inc. v. Canada (Health), 2011 FC 1316 (Sandoz) regarding '764 patent determining that allegations of invalidity for obviousness not justified—Court herein having to consider principle of judicial comity—Court must discern evidence, argument from reasons of previous decision; compare that evidence, argument with those at hand; determine meaningful differences; give respect to earlier decision unless differences determinative, previous decision containing critical error of law or if law having changed—Obviousness considered in Sandoz with different evidence, expert witnesses—Interpretation in Sandoz of what constitutes inventive concept not matter of comity—Interpretation of patent specification like interpretation of contract between parties—Level of comity owed by one judge in interpretation of same contract by another judge not as great as level of comity owed when statute or regulation interpreted—Apparent on evidence in present case that respondent’s allegations as to obviousness justified—However, as to judicial comity, no real way to measure whether evidence, argument before Court in Sandoz “different” or “better”—Evidence, argument of same kind—Federal Court of Appeal should consider contradictory decisions, give clear instructions as to how in NOC context previous decisions of Court on same issues, same patent should be considered—Granting order for prohibition only practical way to get matter before Federal Court of Appeal—Application allowed.
Allergan Inc. v. Canada (Health) (T-1560-10, 2012 FC 767, Hughes J., judgment dated June 18, 2012, 111 pp.)