Brimonidine – Issues of Comity

Justice Hughes issued a decision in Allergen v. Apotex 2012 FC 767 (Brimonidine) earlier this week. He determined that Apotex’s allegation of obviousness was justified but granted the prohibition order on the basis that an earlier decision of Justice Crampton on the same patents, but different parties (2011 FC 1316) was contrary and therefore an issue of comity should be considered by the Federal Court of Appeal. The decision and a summary is available from Beeser Ramamoorthy.

The previous decision Allergen Inc. et al. v. Canada (Minister of Health) and Sandoz Canada, 2011 FC 1316.

Justice Hughes concluded in his decision:

[193]    I believe that there have been serious issues raised as to comity. The somewhat contradictory decisions of the Court of Appeal should be considered by that Court and clear instruction given as to how, in an NOC context, previous decisions of a Court on the same issues respecting the same patent, should be considered.

[194]    The only practical way to get the matter before the Court of Appeal is for me to grant the Order for prohibition in the likely expectation that Apotex will appeal.