PATENTS |
Practice |
Novartis A.G. v. Apotex Inc.
A-622-01
2002 FCA 440, Strayer J.A.
8/11/02
6 pp.
Mootness--Motion in writing by respondent Apotex Inc. to have appeal from Trial Division decision dismissed for mootness--Trial Division Judge dismissed application by appellant Novartis for prohibition on grounds that number of specified claims in patent invalid as anticipated, obvious or overly broad--Minister then issued notice of compliance (NOC)--Fundamental principles applicable stated in Pfizer Canada Inc. v. Nu-Pharm Inc. (2001), 11 C.P.R. (4th) 245 (F.C.A.)--Basic principle regarding extraordinary procedures provided by Regulations for public law purpose of enabling Trial Division to prevent public officer from issuing NOC, designed for protection of public's health, if patentee can show patents owned by applicant first person, relevant claims not invalid, would be infringed--Once prohibition proceedings dismissed by Trial Division, Minister entitled to, and did, issue NOC--This lawful administrative action taken by Minister under Regulations has rendered appeal moot, but not precluding appellant from other possible remedies available under general law of intellectual property--Motion to dismiss appeal on grounds of mootness allowed.