Eli Lilly and Co. v. Novopharm Ltd.
T-2248-93
McGillis J.
9/2/95
24 pp.
Application for order, pursuant to Regulations, s. 6(1), to prohibit Minister from issuing notice of compliance (NOC) to respondent and unlicensed third party (Apotex) for marketing of nezatidine medicine in Canada -- Applicant holding patent and marketing nizatidine capsules in Canada-Respondent obtaining compulsory licence -- Respondent and Apotex entering into agreement to share rights under licences for products for which only one party holding licence -- Applicant terminating licence on ground agreement constituting sublicence in breach of terms of licence -- Respondent applying for NOC with respect to nezatidine, and issuing notice of allegation in support thereof, relying on licence as basis for alleged non-infringement of patents-Issues: (1) whether agreement constituting sublicence; and (2) whether Court having jurisdiction to adjudicate termination of compulsory licence in context of Regulation proceedings -- Applicant required to establish, on balance of probabilities, assertions contained in respondent's notice of allegations not "justified"-Agreement interpreted in light of Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888 principles focusing on true intent of parties at time of entry into agreement -- In drafting agreement, respondent intending to enter into supply agreement -- Provisions allowing Apotex to direct terms of material importation not determinative of sublicence -- Provision for payment of fees in addition to cost of materials and royalties payable under compulsory licence not constituting royalty payments-Agreement not granting to Apotex any of respondent's rights-Interpretation of agreement according with intentions of parties and producing sensible commercial result from their perspective-Agreement not constituting sublicence; applicant failing to establish allegations unfounded -- S. 6(1) constituting judicial review proceedings pertaining to public law and administrative matters -- Court not having jurisdiction to determine ancillary or incidental questions pertaining solely to rights of two private parties (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)) -- Although agreement held not to constitute sublicence, Court without jurisdiction to determine whether compulsory licence terminated -- Application dismissed-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(1).