Janssen Inc. v. Apotex Inc., 2023 FC 912 (Paliperidone*)
Justice Manson - 2023-06-28
Read full decision. Automatically generated summary:
The Plaintiffs, Janssen, move for summary judgment in four related patent infringement actions brought under subsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations. In each action, Janssen argues that the Defendant, Apotex, will infringe the 335 Patent. Apotex defends the actions on the sole basis that the 335 Patent is invalid on the ground of unpatentable subject matter, as a method of medical treatment. On this motion for summary judgment, Janssen argues that Apotex’s patent invalidity defence is res judicata and constitutes an abuse of process, based on the litigation history of the 335 Patent. ... Here, Janssen’s motion was brought outside of the period specified in Rule 213(1). This constitutes an irregularity under Rule 56 and does not render Janssen’s motion void or allow Apotex to defend the merits of the summary judgment motion based on Janssen’s non-compliance. Rather, it was for Apotex to bring a motion under Rule 58 to challenge Janssen’s non-compliance with the Rules as soon as it was practicable and it did not do so. ... I find that the Within Actions do not meet the Grandview test for cause of action estoppel. I am not satisfied that there is currently a final decision. ... The Regulations, when viewed contextually and purposively, do not preclude successive dual NOAs in respect of the same patent, one alleging non-infringement and another alleging invalidity. ... The motion is dismissed.
Decision relates to:
- A-36-22 - APOTEX INC. v. JANSSEN INC ET AL which is an appeal from 2022 FC 107 in T-124-21
- T-1121-22 - JANSSEN INC. ET AL v. APOTEX INC.
- A-229-23(2023 FCA 253) - which is an appeal from this decision
- T-1122-22 - JANSSEN INC. ET AL v. APOTEX INC.
- T-124-21 - JANSSEN INC. ET AL v. APOTEX INC.
- T-1248-22 - JANSSEN INC. et al. v. APOTEX INC.
- T-1249-22 - JANSSEN INC. et al. v. APOTEX INC.
- T-1441-20 - JANSSEN INC. ET AL v. PHARMASCIENCE INC.
- T-353-18 - JANSSEN INC. ET AL v. TEVA CANADA LIMITED