PATENTS |
Eli Lilly & Co. v. Apotex Inc.
A-273-99
Evans J.A.
22/11/00
6 pp.
Appeal from Trial Division decision ((1999), 165 F.T.R. 83) refusing order of certiorari to quash notice of compliance (NOC) issued by Minister of Health under Patented Medicines (Notice of Compliance) Regulations--NOC issued to respondent, Apotex, in respect of drug nizatidine--Motions Judge finding information disclosed by Apotex to Lilly misleading--However, refusing to quash NOC as not convinced Minister committed reviewable error so as to warrant quashing of NOC--Certiorari extraordinary remedy granted in discretion of Court--Not normally issued, even when administrative action can be shown to have been vitiated by error, if adequate alternative remedy available to appellant--Appropriate for Motions Judge to conclude Lilly should be left to resort to private law rights, remedies available to it as patent holder--Quashing NOC would enjoin Apotex from marketing nizatidine manufactured by process described in connection with second notice of allegation--Lilly not misled to its prejudice by inaccuracy, incompleteness in detailed statement--No allegation Apotex guilty of fraud, deception--Facts of case not requiring NOC be quashed in order either to maintain integrity of statutory scheme created by Regulations, or to remedy injustice Lilly might have suffered--Appeal dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.