Hoffman-La Roche Ltd. v. Canada ( Minister of National Health and Welfare )
A-265-96
Stone J.A.
21/10/96
14 pp.
Appeal from dismissal of application for order prohibiting Minister from issuing notice of compliance in respect of medicine Ticlopidine Hydrochloride until after expiration of patent-Syntex filing patent list-Respondent sending notice of allegation pursuant to Patented Medicines (Notice of Compliance) Regulations, alleging no infringement-Respondent not disclosing composition of proposed ticlopidine tablets-Motions Judge concluding allegation justified-If respondent not using one of acids listed in claim, no literal infringement-Principles gleaned from F.C.A. cases dealing with s. 6 proceedings, seeking orders prohibiting issuance of notices of compliance since Regulations adopted, summarized-Purpose of Regulations to prevent infringement of patent by person who makes, constructs, uses or sells patented invention-S. 6 proceedings not infringement action-Respondent's obligations under Regulations to faithfully comply with requirements of s. 5(1),(3)-S. 5(3)(a) requiring provision of detailed statement of "legal and factual basis for allegation"-Although Part V.1 procedural rules requiring neither s. 5(1)(b) allegation be supported by any affidavit evidence, nor testing assertion on crossexamination, allegation intended to be accurate-Motions Judge finding respondent asserting as fact no infringement because product not using in its composition any of organic acids specified in patent-According to claim, composition must contain "at least one pharmaceutically acceptable non-volatile acid, which is" one of organic acids then named-As language of claim unambiguous, no aid in interpretation from disclosure required-Only one of those particularized acids to be included in composition referred to in claim-No error in Motions Judge confining analysis, conclusion of non-infringement to text of patent-Recourse to rest of specification unnecessary where words unambiguous-Respondent not required to go further than it did in disclosing facts supporting allegation of non-infringement or that Motions Judge required to make determination beyond one actually made-In keeping with summary nature of proceedings, if facts asserted by respondent justify allegation of non-infringement, in so far as text of relevant claim concerned, then allegation justified-Proceeding summary one not designed to replace action between parties-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 5, 6.