Eli Lilly and Co. v. Novopharm Ltd.
A-120-95
Stone J.A.
24/4/96
5 pp.
Appeal from dismissal of application to prohibit Minister of National Health and Welfare from issuing notice of compliance for marketing of Nizatidine to Novopharm Ltd.-At same time application to prohibit Minister from issuing notice of compliance to Apotex Inc. allowed on ground Apotex' allegation under regulations not justified-Motions Judge concluding Novopharm not infringing patent rights by marketing medicine pursuant to notice of compliance-Novopharm holding compulsory licence, providing for termination upon breach by licensee, precluding grant of sublicences-Apotex, Novopharm entering agreement enabling Apotex to market medicine in Canada without infringing patent rights-On appeal from Apotex decision (A-82-95, Pratte and MacGuigan JJ.A., judgment dated 1/4/96, not yet reported), majority holding agreement contravening term of compulsory licence against sublicensing and licence terminated by notice given by appellants to Novopharm-F.C.A. decision in Apotex not res judicata, but binding unless distinguishable on facts or manifestly wrong because overlooking statutory provision or case that ought to have been followed: Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274 (C.A.)-Compulsory licence and agreement in evidence in both cases herein-No reason not to apply C.A. reasons in Apotex in present appeal-While agreement requiring company to comply with terms of licence, other clauses of agreement also considered-Appeal allowed-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6.