PATENTS |
Practice |
Novartis Pharmaceuticals Canada Inc. v. Rhoxalpharma Inc.
T-462-02
2002 FCT 742, Lemieux J.
3/7/02
13 pp.
Motion pursuant to Patented Medicines (Notice of Compliance) Regulations, s. 6(5) for order dismissing Novartis' application for order prohibiting Minister of Health from issuing notices of compliance in connection with 25 and 50 mg capsules of cyclosporine--S. 6(5)(b) permitting court to dismiss application on ground redundant, scandalous, frivolous or vexatious or otherwise abuse of process--Rhoxal submitting Novartis attempting to re-litigate issues already decided by Court--On March 1, 2002 Tremblay-Lamer J. dismissing prohibition application by Novartis in connection with 100 mg capsules of cyclosporine until after expiration of Novartis' patent on ground capsules not infringing patent as not containing hydrosol, merely forming hydrosol after ingestion, but neither disclosure nor patent claims referring to hydrosol formed in situ--Novartis appealed that decision, but before appeal heard, NOC issued to Rhoxal for 100 mg capsules--Appeal dismissed on ground of mootness--Case law establishing following parameters: (1) doctrine of abuse of process flexible, not limited to any set number of categories; (2) used to bar proceedings inconsistent with public policy purpose; (3) application depending on circumstances, fact and context-driven; (4) aim to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent miscarriage of justice--Novartis' application not abuse of process, should not be dismissed under s. 6(5)--Unique circumstances herein arising when Novartis' appeal from Tremblay-Lamer J.'s judgment dismissed for mootness--Application which Rhoxal now seeking to strike in response to Rhoxal's new NOA's for cyclosporine capsules in dosage strengths of 25, 50 mg-- Novartis' application not vexing Rhoxal, unfair to it, bringing administration of justice into disrepute--Application dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(5) (as enacted by SOR/98-166, s. 6).