Merck Frosst Canada Inc. v. Canada ( Minister of Health and Welfare )
T-1943-93
Jerome A.C.J.
15/4/94
7 pp.
Application for order prohibiting issue of notice of compliance for medicine sulindac until after expiry of patents-Applicant owner and licensee of patents-Respondent able to obtain compulsory license of patented medicine before expiration of patent-Pursuant to Amended Patent Act 1992, compulsory licensing provisions in Patent Act repealed-Procedure for obtaining order prohibiting issue of notice of compliance set out in Patented Medicines (Notice of Compliance) Regulations-Regulations, s. 4(2) requiring patent list to set out any Canadian patent containing claim for medicine itself or claim for use of medicine-Patents not including claims to sulindac as produced by process nor claims to use of sulindac; claims relate to process for preparing sulindac-Three types of claims which can be made in medicine patent: claim for medicine itself, "product" claim; claim for medicine when prepared by particular process, "process-dependant" product claim; particular process producing medicine, "process" claim-Whether definition of "claim for medicine itself" in Regulations, s. 2 including or covering claim in patent for methods or processes of manufacture of medicine-S. 2 meaning claim for medicine itself and medicine when prepared by particular process, not covering claim for particular process used to produce medicine-Application dismissed-Patent Act, R.S.C., 1985, c. P-4, ss. 55.1 (as enacted by S.C. 1993, c. 2, s. 4, c. 44, s. 193), 55.2 (as enacted by S.C. 1993, c. 2, s. 4)-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 2, 4(2).