PATENTS |
Merck Frosst Canada & Co. v. Canada (Minister of Health)
A-511-00
2001 FCA 136, Evans J.A.
1/5/01
5 pp.
Appeal from Trial Division decision ((2000), 7 C.P.R. (4th) 522) dismissing application for judicial review of refusal by Minister of Health to add `331 patent to patent list with respect to tablet "Zocor"--Whether `331 patent "contains claim for the medicine itself" for purpose of Patented Medicines (Notice of Compliance) Regulations, s. 4(2)(b)--Trial Judge concluding `331 patent did not contain "claim for medicine itself", Minister correctly refused to add `331 patent to register--Judge made no error in reaching result--If successful, appellants would be able to do indirectly what they could not do directly, that is, prevent competitor from obtaining Notice of Compliance for drug containing simvastatin produced by non-infringing process--In construing claims of patent, court not entitled to consider such extraneous matters as content of new drug submission filed under Food and Drug Regulations--Fact that simvastatin in lactone form only has therapeutic effect after metabolized in body into patented metabolites does not justify construing claims of `331 patent to include simvastatin in lactone form--Appeal dismissed--Food and Drug Regulations, C.R.C., c. 870--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 4(2) (as am. by SOR/98-166, s. 3).