PATENTS |
Practice |
Apotex Inc. v. Syntex Pharmaceuticals International Ltd.
T-1168-01
2001 FCT 1375, Blais J.
6/12/01
7 pp.
Motion to set aside Prothonotary's order striking action for damages pursuant to Patented Medicines (Notice of Compliance) Regulations, s. 8 in respect of lost sales of naproxen controlled release tablets--Holding "plain and obvious" action could not succeed as not pleading material facts supporting cause of action under former s. 8; simple assertion delay in issuance of NOC caused by commencement of application for prohibition insufficient as liability for damages created by s. 8 pertaining only to those incurred as result of NOC not issuing until after patent expired-- Discretionary orders of prothonotary should not be disturbed on appeal to judge unless clearly wrong, in sense prothonotary exercised discretion based upon wrong principle or misapprehension of facts, or they raise questions vital to result of case--As interpretation of s. 8 vital to final result of case, Court required to intervene, exercise discretion de novo--In Apotex Inc. v. Eli Lilly and Co. (2001), 13 C.P.R. (4th) 78 (F.C.T.D.) Blanchard J. holding interpretation of s. 8, determination of its object complex matter of statutory interpretation, better left for argument at trial--As not yet clear understanding of what s. 8 means, more prudent for prothonotary to follow guidance of Blanchard J.--Application allowed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 (as am. by SOR/98-166, s. 8).