AB Hassle v. Canada ( Minister of National Health and Welfare )
T-1446-93
McGillis J.
28/4/94
6 pp.
Application for interlocutory relief including order compelling respondent Apotex to provide detailed statement of legal and factual basis in support of notice of allegation and particulars -- Applicant Hassle, owner of six patents concerning medicine omeprazole -- Apotex submitted notice of allegation under Patented Medicine (Notice of Compliance) Regulations, s. 5(3)(b), alleging no claim for medicine or its use would be infringed by making, constructing, using or selling capsules of omeprazole -- Applicants applied for order prohibiting Minister of National Health and Welfare from issuing notice of compliance marketing approval to Apotex until after expiration of six patents -- Overall legal burden of proof at hearing under Regulations, s. 6(2) resting on patentee: Eli Lilly and Co. et al. v. Nu-Pharm Inc. et al, T-1536-93, Nadon J., order dated 23/2/94, F.C.T.D., not yet reported -- Wording of s. 6(2) also imposing on generic company evidential burden of adducing sufficient evidence to justify allegations, failing which, patentee will have little difficulty meeting overall legal burden in proceedings -- In light of finding generic company has burden of adducing evidence to justify allegations, rationale advanced by applicants in support of application for particulars would appear to no longer exist -- Application dismissed -- Patented Medicine (Notice of Compliance) Regulations, SOR/93-133, ss. 5(3)(b), 6(2).