Bayer Inc. v. Amgen Canada Inc., 2024 FC 544 (Aflibercept*)

Associate Justice Crinson - 2024-04-09

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The application for judicial review which provides the context for this motion brought by the Applicant, is in respect of a decision of the “OPML wherein the Minister determined: (1) that the “315 Patent was eligible for listing on the Patent Register for EYLEA® as of the Minister’s eligibility decision ... The amendments to the original application proposed on this motion can be broadly described as changing the description of the August 30, 2023 event from the “Eligibility Decision” to “Communicated Eligibility Decision”, and add in particulars of an alleged screening of the ‘315 Patent such that the Applicant in the proposed amended notice of application now alleges that “while the exact date of the eligibility of the ‘315 Patent was determined is unknown, the eligibility was sometime between August 22, 2023 and August 30, 2023”. ... The Court is satisfied, taking a realistic view based on the records before it, that the proposed amended notice of application when examined in the context of the law and the litigation process meets the threshold of having a reasonable prospect of success. ... The Additional Documents are relevant to the screening process that was conducted leading to the decision regarding the ‘315 Patent which is the subject matter of the application for judicial review. Thus, there is an arguable case that the documents are relevant to the grounds and relief sought in this application for judicial review and they should be included in an amended certified tribunal record. ... The Applicant’s motion for production of a witness, who has not sworn an affidavit in this proceeding is denied.

Decision relates to:


Canadian Intellectual Property