Posts from ‘Canada: Patents’
In Apotex Inc. v. Merck & Co., Inc (2010 FC 287), the Federal Court of Canada (FC) held that Apotex is entitled to obtain compensation from Merck for having been kept out of the norfloxacin market for several years while the parties litigated Apotex’s Notice of Compliance (NOC) application.
Apotex tried to market a generic version of norfloxacin in the early 1990s, a drug patented by Merck. Merck filed an order to prohibit Apotex from obtaining a NOC. The Supreme Court of Canada set aside the prohibition order on July 9, 1998 in Merck Frosst Canada v. Canada. Apotex sought relief under s.8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (“the 93 Regulations”), as amended by SOR/98-166 (“the ’98 Regulations”), for delayed market entry caused by Merck’s prohibition order application. Continue Reading
In Bauer Hockey Corp. v. Easton Sports Canada Inc. (2010 FC 361), the Federal Court (“FC”) held Easton Sports Canada Inc. (Easton) infringed, and induced others to infringe, plaintiff Bauer’s Canadian Patent No. 2302953 (“the ’953 patent”) claiming an improved skate having a one-piece quarter section. The FC found all skates manufactured by Easton using a claimed “F” pattern were infringing since these skates featured all of the essential elements claimed in the ’953 patent design. Continue Reading
In Apotex Inc. v. Syntex Pharmaceuticals International Inc. (2010 FCA 155), the Federal Court of Appeal (“FCA”) affirmed the Federal Court’s (FC) decision (2009 FC 494) dismissing Apotex’s claim for damages under s.8 of the Patented Medicines (Notice of Compliance) Regulations (“PMNOCR”). The FCA held that s.8 of the PMNOCR does not apply where an innovator prevailed in PMNOCR prohibition proceedings but not in subsequent patent litigation, meaning generic manufacturers cannot retroactively apply a finding of invalidity to PMNOCR prohibition proceedings. Continue Reading
In Canada (Minister of Health) v. Merck Frosst Canada Ltd. (2009 FCA 166), the Federal Court of Appeal (“FCA”) reversed the Federal Court (“FC”) and held the Minister of Health (“MOH”) could disclose pharmaceutical regulatory approval records to a competitor access requestor under section 4(1) of the Access to Information Act (“the Act”) without notice since none of the narrow exceptions listed in sections 20(1)(a)-(c) of the Act applied.
An access requestor requested records from the Minister of Health (“MOH”) regarding Merck Frosst Canada’s (“Merck Frosst”) New Drug Submission (“NDS”) for Singulair, a drug used in the treatment of asthma. After considering the section 20(1) exceptions, the MOH disclosed sections of the records to the requesting party without notice to Merck Frosst. The FC had held the MOH could not disclose information to an access requestor unless Merck Frosst was given notice to object since the records contained trade secrets, confidential technical information, or materials that could affect the financial or competitive position of a party. Continue Reading
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