Merck Canada Inc. v. The Minister of Health, 2021 FCA 224 (Pembrolizumab*)

Justice Gauthier; Justice Locke; Justice LeBlanc - 2021-11-22

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This is an appeal from a decision of the Federal Court dismissing Merck Canada Inc.’s application for judicial review of the Minister of Health’s refusal to list the ‘806 Patent on the patent register (2021 FC 345). ... Based on its own reading of subsections 3(2) and 4(6) of the PM (NOC) Regulations, it argued that the Minister had the discretion to extend the 30-day time limit set out in subsection 4(6). Merck also submitted various reasons why the Minister should exercise its discretion in its favour, given the “exceptional” circumstances of this case. Particularly, it noted that an external patent agent’s inadvertent error made in the context of COVID-19 resulted in a delay of only one day (according to their calculation, which does not accord with the electronic filing procedure). ... However valiant and understandable, this appeal must fail. This is not the first time that a patent agent has missed a deadline. Unfortunately, it is unlikely to be the last. This appeal constitutes one of several attempts since the late 1990s to circumvent the time limits set out in the PM (NOC) Regulations, particularly those in section 4.

Decision relates to:


Canadian Intellectual Property