Merck Canada Inc. v. Canada (Health), 2021 FC 345 (Pembrolizumab*)

Justice Fothergill - 2021-04-20

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Merck seeks judicial review of the refusal by the Minister of Health to add the 806 Patent to the Patent Register pursuant to s 4(6) of the PM(NOC) Regulations. The Minister found that Merck’s patent lists were not submitted within the specified 30 day time period. Merck says the Minister unreasonably held that the Time Limits and Other Periods Act (COVID-19) did not have the effect of suspending the 30 day time period specified in s 4(6) of the PM(NOC) Regulations. ... The Canadian patent agent retained by Merck’s United States parent company did not report the issuance of the 806 Patent until June 15, 2020, more than a month after the patent was issued. However, on June 12, 2020, Merck USA independently discovered that the patent had been issued, and immediately instructed Merck to prepare and submit the necessary patent lists. The patent lists were submitted later that day, but after the close of business. Pursuant to Health Canada’s electronic filing policies, the patent lists were considered by the Minister to have been filed on the next business day, Monday, June 15, 2020.

Decision relates to:


Canadian Intellectual Property