PATENTS |
Practice |
Zeneca Pharma Inc. v. Canada (Minister of National Health and Welfare)
A-340-95, A-341-95
Strayer J.A.
19/12/00
5 pp.
Motion to set aside judgment, restore prohibition order, because of matter arising subsequent to making of order as provided by Federal Court Rules, r. 399(2)--In May 1995 Richard J. issuing prohibition to prevent Minister from issuing notice of compliance for sale of lisinopril--In October 1996 F.C.A. allowing appeals, stating: (1) Patent Act, s. 56, permitting anyone possessing material obtained before issue of patent to sell that material, making such dispositions non-infringement of patent; (2) that "second person" holding less than enough inventory of such material to cover normal sales for remaining life of patent should not preclude it from obtaining notice of compliance--Minister issued notice of compliance--Since order issued, moving parties learning Apotex, second party, had available to it lisinopril other than pre-patent inventory; using this licensed lisinopril for own products--Alleging acquisition after October 1996 of licensed material, if known to Court in 1996, would have led to different decision--Motions dismissed--Scheme established by Patented Medicines (Notice of Compliance) Regulations not replacing private rights of action open to patentees to protect themselves against infringement--In 1996 Court concerned with whether any basis, on facts as then existed, for Trial Division to prohibit issuance of notice of compliance--Conclusion no such facts correct at time reached--Evidence before Court today not "new matter"--R. 399 cannot be used as vehicle for revisiting judgments every time change occurs in facts--No basis for quashing notice of compliance--Alternative remedies predicated on existence of some continuing jurisdiction--None exists--Court functus officio as regards 1996 judgment other than as authorized by Rules, eg. rr. 397, 399--Federal Court Rules, SOR/98-106, rr. 397, 399--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.