PATENTS |
Bayer Inc. v. Canada (Minister of National Health and Welfare)
A-518-98
Sharlow J.A.
7/4/00
4 pp.
Appeal from Motions Judge's decision dismissing application under Patented Medicines (notice of compliance) Regulations for order prohibiting Minister of National Health and Welfare from issuing notice of compliance to respondent Apotex in respect of ciprofloxacin hydrochloride until after expiration of Canadian Patent No. 1,322,334--Element of inventive ingenuity essential for patents based on divisional application--Decision of Supreme Court of Canada in Commissioner of Patents v. Farbwerke Hoechst Aktiengesellschaft Vormals Meister Lucius & Bruning, [1964] S.C.R. 49 applied--Motions Judge correctly applied relevant principles relating to burden of proof--Bayer having burden of proving allegation of invalidity made by Apotex not justified--Apotex adducing evidence, in form of affidavit, Motions Judge correctly accepted as going to question of validity--Operation of statutory presumption in face of evidence of invalidity depending upon strength of evidence--If evidence proves on balance of probabilities patent invalid, presumption rebutted, no longer relevant--Appeal dismissed.