Merck Frosst Canada Inc. v. Canada ( Minister of National Health and Welfare )
T-1305-93
Cullen J.
20/12/93
9 pp.
Motion by respondent for order extending time to file affidavit, setting time and place of hearing -- Motion by applicant compelling respondent to comply with Patented Medicines (Notice of Compliance) Regulations, s. 5(3) by filing detailed statement of legal, factual basis for the allegations set out in Notice of Allegation -- Originating notice of motion filed for order prohibiting Minister from issuing to Apotex Notice of Compliance for medicine "Lovastatin" currently covered by patent -- Apotex joined as respondent -- Protective order issued -- According to Bayer AG v. Canada (Minister of National Health and Welfare), A-389-93, Mahoney J.A., 25/10/93, F.C.A., Part V.1 Rules apply -- Rules dictating expeditious conduct of proceedings -- (1) Although late, affidavit filed, accepted by Registry without Court order required under R. 1614 -- Extension granted as applicants aware of contents, no prejudice caused by granting motion -- (2) Motion for time, place of hearing premature as Apotex not filing detailed statement of fact, law -- (3) Applicants alleging statements filed not including facts from which Court may conclude no infringement i.e. process used to make Lovastatin, how process not infringing patents, nor do statements rebut Patent Act, s. 55.1 presumption substances of same chemical composition deemed produced by same process -- As protective order herein, Apotex must file detailed statement of factual, legal basis for allegations to allow applicants to be fully aware of grounds of allegation -- "Detailed statement" important to delineate issues as no statement of claim to provide opportunity to move for particulars -- Applicants must know case to be met, and are armed with presumption patents valid -- Affidavits filed in support intended to provide evidence of legal, factual bases set out in statement, not to set out issues -- Respondents submitting requiring statement of legal, factual basis after six-month delay prejudicial, and therefore seeking hearing of originating motion -- As these applications brought so soon after Regulations becoming law, unfair, absent order on these motions to start clock when originating motion filed -- More workable to start clock now and require compliance with Part V.1 timetable as of date of this hearing -- Bayer noting matter should still be resolved within 30 months after filing originating notice of motion except in rare circumstances -- Regard should be had to Patent Act, s. 55.2(4)(e), Regulations s. 7(5), and impact on R. 1614 discretion -- Although Court has jurisdiction to extend 30-month period, regard must be had to expeditious resolution of matter in setting down deadlines -- 30-month period not extended -- Federal Court Rules, C.R.C., c. 663, RR. 1602 (as am. by SOR/92-43, s. 19), 1603(3) (as am. idem), 1614 (as am. idem) -- Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 5(1)(b)(iv), (3), 7(5) -- Patent Act, R.S.C., 1985, c. P-4, s. 55.1 (as enacted by S.C. 1993, c. 2, s. 4), 55.2(4)(e) (as enacted idem).