PATENTS |
H. Lundbeck A/S v. Canada (Minister of Health)
T-2112-02
2003 FC 1333, Morneau P.
12-11-03
14 p.
Motion for dismissal of application for judicial review filed by applicants under Patented Medicines (Notice of Compliance) Regulations, s. 6(1)--Lundbeck owner of patent no. 2049368 (Patent) intended to protect citalopram hydrobromide in treatment of dementia--In February 1999, Lundbeck obtained from Minister of Health notice of compliance (NOC) for citalopram as antidepressant--In December 2002, Lundbeck filed application to prohibit responsible minister from issuing NOC before expiration of patent on ground Pharmascience's allegation of non-infringement of patent justified--Must be clear and obvious that Lundbeck will be unable to persuade Court, by preponderance of evidence, that Pharmascience's allegation of non-infringement patent not justified--In regard to s. 6(5)(a), Pharmascience motion must be dismissed on basis of Genpharm Inc. v. Canada (Minister of Health), [2004] 1 F.C.R. 375 (F.C.) where Blais J. held withdrawal of patent from Register obtained through motion for dismissal under Regulations, s. 6(5) and not through application for judicial review on merits--In regard to Regulations, s. 6(5)(b), Pharmascience's motion meeting applicable test and Lundbeck's application must consequently be dismissed-- Motion allowed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(1) (as am. by SOR/98-166, s. 5), (5) (as am. idem).