Pharmascience Inc. v. Canada ( Commissioner of Patents )
T-1628-98
Pinard J.
26/11/98
9 pp.
Application for judicial review under Federal Court Act, s. 18.1 of two decisions made by Commissioner of Patents-Patent Co-operation Treaty (PCT) allowing patent applicant to seek patent protection in 95 states around world through filing of single International Patent Application-International Patent Application No. PCT/US91/02980 filed by respondent G.D. Searle & Co. on May 1, 1991 for pharmaceutical composition-Late entry allowance granted on December 15, 1992-Second decision, allowing Searle's voluntary amendment to patent, granted on December 16, 1997-Patent application allowed on September 2, 1998-Application for judicial review relating to two above mentioned decisions of Commissioner of Patents-Application dismissed on three grounds: (1) Delay in bringing application for judicial review not satisfactorily explained-Federal Court Act, s. 18.1(2) requiring application be made within 30 days of date impugned decision first communicated by federal board, commission, tribunal-Applicant aware of application made by Searle in June 1997-Chose to wait until August 1998, over year later, to bring application for judicial review-(2) Applicant lacking standing-Act, s. 18.1(1) limiting judicial review to "anyone directly affected by the matter in respect of which relief sought"-Only person "directly affected" by decisions taken during prosecution of patent application before Canadian Patent Office generally patent "applicant"-Applicant only affected indirectly by decisions merely creating situation which may eventually affect it-Applicant's alternative argument it could be recognized as having public interest standing set aside-Impugned decisions of Commissioner of Patents discretionary decisions, not exercise of legislative authority-(3) Judicial review not appropriate remedy herein by reason of existence of other avenues open to applicant, namely Patent Rules, s. 10, Patent Act, s. 60(1)-Application dismissed-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)-Patent Rules, SOR/96-423, s. 10-Patent Act, R.S.C., 1985, c. P-4, s. 60(1).