Janssen Inc. v. Apotex Inc., 2023 FCA 253 (Paliperidone*)
Justice Goyette; Justice Locke; Justice de Montigny - 2023-12-22
Read full decision. Automatically generated summary:
Janssen appeals a decision of the Federal Court (2023 FC 912), which dismissed Janssen’s motion for summary judgment in four related patent infringement actions against Apotex pursuant to the PM(NOC) Regulations. Janssen sought to have remedies claimed in the Underlying Actions granted on the basis that Apotex’s defences were res judicata, an abuse of process and/or precluded by the doctrine of election. The Federal Court refused to grant summary judgment on any of these grounds, and allowed the Underlying Actions to proceed. ... For the reasons set out below, I would allow the present appeal and grant Janssen’s motion for summary judgment as the Federal Court should have done. ... In my view, it was intended that the second person should raise all of its allegations in its NOA, and it should not to keep some in reserve in the event that it is not initially successful. ... The concerning fact that remains in the present appeal is that Apotex decided to argue the invalidity of the 335 Patent only after being unsuccessful in the Prior Action, where it could have, but decided not to, raise the invalidity issue in its NOA or as part of its defence. ... Issuing the judgment that the Federal Court should have issued, I would declare that Apotex’s defences in the Underlying Actions are an abuse of process, and I would grant Janssen the appropriate relief sought in its notice of appeal, including declarations, injunctions, and costs before the Federal Court.
Decision relates to:
- A-229-23 - JANSSEN INC ET AL. v. APOTEX INC which is an appeal from 2023 FC 912 in T-1121-22