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Eli Lilly and Co. v. Apotex Inc.
A-124-98
Létourneau J.A.
26/6/00
3 pp.
Appeal from order ([1998] 3 F.C. D-43) striking from statement of defence and counterclaim, s. 10(a) appellant's defence of invalidity based on "incomplete testing" contained in words "and include compounds that the alleged inventor did not or could not make or test as H2 receptor antagonists before Canadian Application 387139 was filed"--Appellant now contending impugned words not inserted as defence of invalidity, but as factual allegation in support of plea of unsound prediction, recognized ground of patent invalidity--S. 10(b) containing defence of unsound prediction--To extent incomplete testing may be relevant to plea of unsound prediction, order not preventing appellant from introducing, at trial, evidence of incomplete testing provided such evidence tendered as evidence of unsound prediction, not as own independent basis of patent invalidity--Order clearly limited to sufficiency of testing as independent ground of invalidity of patent--Appeal dismissed without prejudice to appellant's right to plead impugned words alleging material facts in support of and relevant to other grounds of invalidity contained in amended statement of defence and counterclaim.