| Citation: |
Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212, [2009] 4 F.C.R. D-5 |
A-373-08 |
Patents
Appeal from Federal Court decision (2008 FC 744) prohibiting Minister of Health from issuing notice of compliance (NOC) to Apotex in respect of levofloxacin hemihydrate tablets until expiry of Canadian Patent No. 1304080 ('080 patent)—'080 patent subject of previous legal proceedings in Canada—Federal Court concluding Apotex not meeting requirements set out in Sanofi‑Aventis v. Novopharm Ltd., [2008] 1 F.C.R. 174 (C.A.) that better evidence, arguments be put forward to relitigate same, similar issues, thus abuse of process for Apotex to relitigate '080 patent—Nothing in Sanofi-Aventis supporting conclusion second person cannot send notice of allegation to patentee, respond to patentee’s application for prohibition on similar grounds to those put forward by different generic manufacturer in other proceedings with same patentee, unless having better evidence, more appropriate legal argument—No abuse of process herein—Federal Court’s misunderstanding of Sanofi-Aventis tainting its assessment of evidence—Required to assess evidence put forth by both parties independently of previous findings—Appeal allowed, Layden-Stevenson J.A., dissenting.
Janssen-Ortho Inc. v. Apotex Inc. (A-373-08, 2009 FCA 212, Nadon and Layden-Stevenson JJ.A., judgment dated June 22, 2009, 47 pp.)