Pfizer Canada Inc. v. Amgen Inc., 2019 FCA 249 (Filgrastim*)
Justice Nadon; Justice Pelletier; Justice de Montigny - 2019-10-04
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This is an appeal by Pfizer of a decision rendered by Prothonotary Milczynski pursuant to which she dismissed a motion brought by Pfizer seeking the dismissal of an action commenced in the Federal Court by the respondents Amgen (see 2018 FC 1078). More particularly, by its motion, Pfizer argued that Amgen’s action was redundant, scandalous, frivolous or vexatious or was otherwise an abuse of process in accordance with section 6.08 of the Patented Medicines (Notice of Compliance) Regulations (the Amended Regulations). In the Prothonotary’s view, Amgen’s action was not scandalous, frivolous, vexatious or an abuse of the Court’s process. For the reasons that follow, I would dismiss Pfizer’s appeal. ... By a decision rendered on November 10, 2015 (the Hughes Decision), Hughes J. of the Federal Court found that Apotex’s allegations of invalidity of the ‘537 Patent were justified on the grounds of obviousness and thus dismissed Amgen’s application. Hence, Apotex received a NOC from the Minister for Grastofil. ... In the present matter, Pfizer’s NOA puts forward the same allegations of obviousness that the Hughes Decision found to be justified. ... As Parliament did not address the issue, I can only conclude, on the basis of the Amended Regulations as they presently read, that Amgen may benefit from the 24-month automatic stay.
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