Apotex Inc. v. Eli Lilly Canada Inc., 2013 FCA 282 (Olanzapine*)
Justice Evans; Justice Stratas; Justice Webb - 2013-12-04
Read full decision. Summary prepared by Alan Macek:
This is an appeal by Apotex from a decision of Justice Gauthier (2010 FC 952). The question at issue was whether a declaration that a patent is invalid enables the Court to vary its earlier order and dismiss an application for a prohibition under subsection 6(1) of the PM(NOC) Regulations in which the Court had granted an order prohibiting the Minister from issuing a NOC pending the expiry of a patent on the list. Apotex acknowledged that it was asking the Court reconsider a question that it has already decided. The Court held that whatever the merits of Apotex’ arguments that Syntex (2010 FCA 155) and Ratiopharm (2011 FCA 215) are bad law and inconsistent with the overall scheme and purposes of the Regulations, they are more appropriately addressed in an application for leave to appeal to the Supreme Court of Canada.
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