| Citation: |
Eli Lilly Canada Inc. v. Novopharm Ltd., 2009 FC 235, [2009] 3 F.C.R. D-15 |
T-1562-07 |
Patents
Practice
Application by patentee first person to prohibit issuance of notice of nompliance (NOC) to respondent Novopharm Ltd., second person intending to market generic version of drug—Whether invalidity, on grounds of obviousness, lack of utility, whether infringement of patent—Burden of proof in NOC proceedings—Bristol-Myers Squibb Canada Co. v. Apotex Inc., 2009 FC 137, not intended to change burden of proof stated in Pfizer Canada Inc. v. Canada (Minister of Health), [2008] 4 F.C.R. 189 (F.C.)—Burden of proof on balance of probabilities that allegations of non-infringement by generic in NOC not justified borne by first party, as such allegations presumed to be true—Approach to obviousness in Pfizer Canada Inc. v. Apotex Inc. (2009), 72 C.P.R. (4th) 141 (F.C.A.), adopted—Allegation of non-infringement justified on balance of probabilities—Allegation of invalidity justified, as utility of promised invention not described nor soundly predictable based on description provided —Application dismissed.
Eli Lilly Canada Inc. v. Novopharm Ltd. (T-1562-07, 2009 FC 235, Hughes J., judgment dated March 19, 2009, 47 pp.)