PATENTS |
Infringement |
AB Hassle v. Canada (Minister of National Health and Welfare)
A-716-01
2002 FCA 421, Sexton J.A.
1/11/02
23 pp.
Appeal from order ([2000] 3 F.C. 221) dismissing appellants' application for order prohibiting Minister of Health & Welfare from issuing notice of compliance (NOC) to Apotex re: omoprozole for oral administration until expiry of patent--Respondent generic pharmaceutical manufacturer seeking issuance of NOC--Patent containing three claims, all relating to use of compound known previously--Exclusive rights only related to use in treatment of Campylobacter infections, not to compound itself--Respondent alleging manufacture of drug not for use in Campylobacter infections--Appelants claiming compound will in fact be used for such treatment, therefore infringing patent--Trial Judge finding no evidence of direct infringement of any of three patent claims--No connection between respondent and potential third party infringement--Respondent neither inducing nor procuring infringement--Onus on appelants to demonstrate infringement likely to occur if NOC issued-- Appelants alleging pharmacists will prescribe lower-priced generic drug even thought they would not typically know indication--Trial Judge rejecting affidavit opinions-- Appelants failing to show that respondents would infringe appelants' patent-- Appelate court not entitled to susbstitute own view of evidence over that of trial judge--Appelants representing rejected evidence, not arguing error of law-- Onus on appelants to establish case--Appelants not meeting burden--Appelants failing to qualify affiants as expert witnesses--Affiants' testimony weak, not providing factual basis--No palpable and overriding error-- Procter & Gamble Pharmaceuticals Canada, Inc. v. Canada (Minister of Health), [2003] 1 F.C. 402 (C.A.) (Genpharm) interpreting "would be infringed" in Patended Medicines (Notice of Compliance) Regulations, s. 5(1)(b)(iv) not limited to infringement by generic producer--Use claims contemplating use by both generic producers and patients--Genpharm distinguished on facts--Evidence in Genpharm showing actions of generic producer would lead inevitably to patented use--No such evidence in present case--Genpharm not authority for proposition that mere sale by generic of medicine subject to use patent sufficient to constitute infringement-- Bad policy for patent holder to effectively control not only use but compound itself--Desirable for new uses to be found-- Genpharm having no application to generic's liability for patent infringement by third party occurring after NOC issued--Appel dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 5(1)(b)(iv) (as am. by SOR/99-379, s. 2).