| Citation: |
Bristol-Myers Squibb Canada Co. v. Apotex Inc., 2009 FC 137, [2009] 3 F.C.R. D-15 |
T-891-07 |
Patents
Infringement
Application under Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 to restrain Apotex from obtaining notice of compliance (NOC) to sell generic version of antibiotic drug until expiry of Canadian Patent No. 1298288 ('288 patent)—Apotex alleging invalidity of certain '288 patent claims—After receiving notice of allegation, applicant filing disclaimer as to patent claims 1, 2 one day before filing notice of application herein—Disclaimer may save overly broad claim in patent not yet adjudged to be invalid if filed in timely way—In NOC proceedings, Federal Court can only determine whether allegations of invalidity justified—Once disclaimer made, patentee must accept inherent possibility of litigation as to effect of disclaimer—Claims construed for purposes of NOC proceeding, as of date notice of allegation served—While disclaimer valid, not affecting construction of claim 2 as existing before disclaimer filed—Pre-disclaimer claim 2, claim 3 of '288 patent not anticipated, not ambiguous—However, both invalid for obviousness having regard to relevant state of art—Legal principles regarding anticipation, obviousness reviewed—Application dismissed.
Bristol-Myers Squibb Canada Co. v. Apotex Inc. (T-891-07, 2009 FC 137, Hughes J., judgment dated February 10, 2009, 95 pp.)