In Merck Frost Canada v. Apotex (2009 FCA 187), the Federal Court of Appeal (FCA) upheld the Federal Court’s (FC) decision (2008 FC 1185) holding s. 8 of the Patented Medicines (Notice of Compliance) Regulations (PMNOCR) was intra vires s. 55.2(4) of the Patent Act and within the authority of Parliament under s. 91(22) of the Constitution Act, 1867, and that the FC had jurisdiction to hear the s. 8 action. The FCA also upheld the FC’s ruling that s. 8 of the PMNOCR does not contemplate disgorgement of an innovator’s profit. However the FCA found the remedy does not allow compensation for losses suffered outside the period the Minister of Health is prevented from issuing a Notice of Compliance (NOC) to the generic. (more...)