AB Hassle v. Canada ( Minister of National Health and Welfare )
T-2167-93
Nadon J.
7/3/97
12 pp.
Application for order preventing Minister from issuing notice of compliance to Novopharm Ltd. in respect of medicine "Metoprolol Tartrate" until expiration of patent "449"-Novopharm filing new drug submission (NDS) seeking notice of compliance-Comparing product to existing reference brand "Lopressor SR", but mistakenly filing declaration indicating comparing product to "Betaloc Durules" manufactured by plaintiff-NDS never changed to indicate substitution of Betaloc Durules for original comparison-Because of error, Novopharm sending notice of allegation to Astra-Subsequently Novopharm withdrawing notice of allegation-No longer allegation of non-infringement-Novopharm's NOC submission incomplete-(1) Court retaining jurisdiction despite withdrawal of notice of allegation: Pharmacia Inc. v. Canada (Minister of National Health and Welfare) (1994), 58 C.P.R. (3d) 207 (F.C.A.)-Existence of documentary piece of evidence neither adding to nor detracting from Court's jurisdiction-(2) Proceeding moot-Applicant's standing derived from Patented Medicines (Notice of Compliance) Regulations, s. 6 because Novopharm serving it with notice of allegation pursuant to s. 5(3)(b)-But at time of hearing of application allegation withdrawn-S. 7 precluding issuance of notice of compliance if patent on patent list not expired and not subject of allegation-If 449 patent on list, withdrawal of allegation preventing Minister from issuing NOC-Order prohibiting Minister from doing that which already prohibited from doing according to Regulations adding nothing, unnecessary-S. 6(2) requiring court to issue order if allegations in notice of allegation not justified-Withdrawal herein not admission allegations not justified-Only effect of withdrawal to render proceedings moot-As order of prohibition having no practical effect on rights of parties as rights, obligations fully identified, clarified in Regulations application dismissed-Patented Medicines (Notice of Compliance) Regulations, SOR/93133, ss. 5, 6, 7.