Bayer AG v. Canada ( Minister of National Health and Welfare )
A-669-93
Strayer J.A.
20/1/95
8 pp.
Appeal against Trial Division order directing corporate respondent to file notice of allegation with respect to patent at issue and detailed statement of legal and factual basis for asserted allegations -- Corporate appellants owner and licensee of patent at issue and initial patent -- Appellants filing patent list referring to initial patent -- Respondent serving on appellants notice of allegation asserting its intended sale of competitive product not infringing initial patent -- Appellants applying for order to prohibit Minister from issuing notice of compliance with respect to competitive product -- Appellants filing new patent list referring to patent at issue -- Appellants applying for particular order with respect to initial patent -- Judge granting order sought with respect to initial patent but also granting order with respect to patent at issue, an order neither party requested -- Appellants contending second order effectively: (1) amending original application for prohibition; and (2) shortening regulation time limit for completing proceeding with respect to patent at issue as relief sought with respect to patent in issue becoming part of original application for prohibition -- Appellant having 45 days after being served with additional notice of allegation with respect to patent filed pursuant to subsequent patent list to apply for another order of prohibition (Regulations, 6(1)); and 30-month time limit prescribed by Regulation 7(1)(e) starting to run from date of additional application for prohibition -- Notice of allegation preceding institution of prohibition proceedings; consequently, Court not having jurisdiction to: (1) make orders concerning filing of such notice of allegations; or (2) require them to be perfected in any way -- In interests of convenience and economy of time and money, trial judge may order, in appropriate cases, evidence and arguments with respect to all notices of allegations filed by a given "second person" relating to same medicine be dealt with in same prohibition proceeding or at same time -- Trial judge not having jurisdiction to make order with respect to patent in issue -- Appeal allowed -- Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 6(1), 7(1)(e).