Merck Frosst Canada Inc. v. Apotex Inc.
A-215-98
Noël J.A.
4/2/99
6 pp.
Appeal from interlocutory order whereby Pinard J. declined to strike references to Canadian Patent No. 1,161,380 (patent _380) from originating notice of motion for prohibition filed by respondents (Merck) under Patented Medicines (Notice of Compliance) Regulations-Merck seeking to prohibit Minister of Health (Minister) from issuing Notice of Compliance to Apotex in respect of medicine simvastatin until expiry of patent _380, patent _322-Merck owner of Canadian Patent No. 1,199,322 (patent _322)-Apotex seeking order under Regulations, s. 6(5) dismissing Merck's application for prohibition only in respect of patent _380-Motion Judge correct in holding s. 6(5) not permitting Court to dismiss only part of application for prohibition-"Application" under s. 6(1) for order prohibiting Minister from issuing Notice of Compliance to second person in respect of drug-Subject-matter of application whether any of patents on patent list would be infringed by making, construction, using, selling by that person of drug for which Notice of Compliance sought-Single application may therefore involve several patents, as made clear by language of s. 6(5) which contemplates dismissal of "application" where "patents in issue" ineligible for inclusion on register-Consistent with policy objective proceedings under Regulations be dealt with in summary manner, s. 6(5) now provides application may be dismissed at early stage-New remedy can only facilitate timely disposition of proceedings under Regulations if it leads to dismissal of application in entirety-S. 6(5) contemplating dismissal only where all patents in issue ineligible-No basis for Apotex's invocation of Court's implied jurisdiction to control process, order that patent _380 be struck from original notice of motion-Appeal dismissed-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6 (as am by SOR/98-166, s. 5).