PRACTICE |
Case Management |
Status Review |
Novartis Pharmaceuticals Canada Inc. v. Apotex Inc.
T-1337-99
2002 FCT 667, Layden-Stevenson J.
14/6/02
7 pp.
Motion for order permitting applicants to file evidence in prohibition proceeding herein (Cyclo 8), order directing schedule governing prosecution of proceeding--Proceeding based upon Apotex's eighth notice of allegation (NOA) alleging non-infringement of certain claims of Canadian patent 1332150 (150 patent) in relation to medicine cyclosporine--Another prohibition application by Novartis (Cyclo 7) based upon Apotex's seventh NOA alleging invalidity of certain claims of 150 patent--In March 2000, notice of status issued with respect to Cyclo 8 application, following which parties negotiated agreement regarding conduct of proceeding--June 2000 order directed Cyclo 8 proceeding stayed pending resolution of Cyclo 7 proceeding; 24-month period extended for length of stay--Cyclo 7 application dismissed by F.C.T.D. in October 2001; decision appealed--October 2001 motion by Apotex for order dismissing Cyclo 8 proceeding or requiring Novartis to file notice of discontinuance dismissed with costs--In November 2001, Apotex filed another motion requesting stay of Cyclo 8 proceeding be dissolved and proceeding dismissed on grounds frivolous, vexatious or abuse of process--In March 2002, Prothonotary dissolved stay, but otherwise dismissed motion--Latter decision appealed--Present motion filed in April 2002--Motion allowed--Implicit in status review provisions in Federal Court Rules, 1998, r. 380 that time limits not met, as herein--Order following status review operating prospectively, and once order issued, time limits prescribed by Rules no longer apply--Once stay ordered, parties precluded from taking any further steps in matter until stay vacated or dissolved--Here, when stay dissolved on consent, applicants should have sought directions of Court regarding prosecution of proceeding--Combined effect of status review, stay order, order denying Apotex motion to dismiss, rendering it unnecessary for Novartis to seek extension of time to file applicants' affidavits--However, would have been inappropriate for Novartis to have forged ahead with filing of affidavits without first seeking directions from Court--Novartis motion timely, motion appropriate, proper--This conclusion fact specific, confined to very unique, unusual circumstances herein--Order accordingly-- Federal Court Rules, 1998, SOR/98-106, r. 380.