[2011] 2 F.C.R. D-17
Patents
Practice
Appeal from Federal Court decision (2010 FC 738) dismissing judicial review of Minister of Health’s determination Canadian Patent No. 2098738 ('738 Patent) ineligible for listing on patent register—Appellant receiving notice of compliance (NOC) for drug TARGIN—TARGIN tablet containing both oxycodone, naloxone—'738 patent addressing dosage forms of oxycodone or salt thereof—Federal Court determining that claim 5 of '738 patent relating solely to oxycodone, not naloxone—Relying on definition of “claim for the dosage form” in Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 2, Federal Court rejecting argument that Regulations, s. 4(2)(c) devoid of any requirement relating to medicinal ingredient, that only relevant consideration whether dosage form at issue having been approved—Present case primarily about product specificity requirement of Regulations, s. 4(2)(c)—First time Federal Court considering Regulations, s. 4(2)(c); guidance gleaned from case law addressing Regulations, ss. 4(2)(b), 4(3)(c)—Product specificity requirement of Regulations, s. 4(2)(c) requiring matching between patent claim for dosage form, dosage form approved through issuance of NOC—Under Regulations, s. 4(2)(c), absent precise, specific matching, patent not eligible for listing on patent register—Therefore, appellant’s TARGIN drug not meeting matching requirement since NOC explicitly including both oxycodone, naloxone while claim 5 of '738 patent does not—Appeal dismissed.
Purdue Pharma v. Canada (Attorney General) (A-288-10, 2011 FCA 132, Layden-Stevenson J.A., judgment dated April 14, 2011, 21 pp.)