PATENTS
Practice
Appeal from Federal Court decision (2006 FC 341) applying issue estoppel to preclude Pharmascience Inc. from relying on allegations in second notice of allegation (NOA) respecting Canadian patent owned by Abbott Laboratories—Whether generic drug manufacturers should be permitted to submit multiple NOAs in respect of patent, each one alleging patent invalid—Generics should in most circumstances be precluded by doctrine of issue estoppel from alleging for second time patent invalid, unless basis relied upon for subsequent allegation could not be determined with reasonable diligence at first instance—Specific grounds on which second person wishes to demonstrate invalidity not constituting separate issues for purposes of issue estoppel—Multiple NOAs from same generic relating to particular pharmaceutical, alleging invalidity of particular patent will generally not be permitted, even if different grounds for establishing invalidity put forward in each—Preconditions of operation of issue estoppel made out—Appeal dismissed.
Abbott Laboratories v. Canada (Minister of Health) (A‑151‑06, 2007 FCA 140, Sexton J.A., judgment dated 5/4/07, 28 pp.)