Abbott Laboratories v. Canada (Minister of Health), 2007 FCA 153, [2007] 3 F.C.R. D-15


Appeal from judgment dismissing application for order prohibiting Minister of Health from issuing notice of compliance for Apo-Clarithromycin to Apotex Inc. until expiry of Canadian patent No. 2261732 (732 patent)—In notice of allegation, Apotex asserting claims 16 to 21 of 732 patent invalid—Presumption of patent validity in Patent Act, R.S.C., 1985, c. P-4, s. 43(2) not determining outcome of proceedings under Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 if record containing any evidence that, if accepted, capable of rebutting presumption—Hoffmann-La Roche Ltd. v.  The Commissioner of Patents, [1954] Ex. C.R. 52; confd [1955] S.C.R. 414 applicable as to whether claims 16 to 21 invalid because claims for known substance—Degree of novelty for patent not achieved by associating known substance with new process for making it — Case law not clear as to how to discern whether substance is known—Here, assumed substance known if hypothetical claim for its invention would fail on ground of anticipation, lack of novelty—Federal Court’s conclusion substance herein known at relevant time supported by evidence—Appeal dismissed.

Abbott Laboratories v. Canada (Minister of Health) (A-510-05, 2007 FCA 153, Sharlow J.A., judgment dated 19/4/07, 8 pp.)