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Practice |
Novartis Pharmaceuticals Canada Inc. v. Apotex Inc.
T-1337-99
2002 FCT 668, Tremblay-Lamer J.
13/6/02
11 pp.
Motion by respondent Apotex to dismiss within proceeding for abuse of process under Patented Medicines (Notice of Compliance) Regulations, s. 6(5)(b)--Apotex sending notice of allegation to applicant Novartis (Invalidity Allegation) alleging invalidity of certain claims of Canadian Letters Patent No. 1332150--Sending further notice of allegation to Novartis (Non-Infringement Allegation) alleging non-infringement of all remaining relevant claims of Patents--Novartis commenced proceedings (Court File T-1266-99, or cyclo #7) under Regulations, s. 6(1) for order prohibiting Minister from issuing Notice of Compliance (NOC) to Apotex until after expiration of 150 Patent--On July 23, 1999, Novartis commenced within proceeding (Court File T-1337-99 or cyclo #8) in response to non-infringement allegation--On November 29, 2001, Apotex filed notice of motion for order dissolving stay of proceeding as ordered by Prothonotary Aronovitch on June 7, 2000, for order dismissing it--Prothonotary Aronovitch dismissing Apotex' motion, finding Novartis' application not abuse of process, not frivolous, vexatious--As appeal from prothonotary's order that raises questions vital to final issue of case, standard of review that of exercise of discretion de novo--Whether prohibition proceedings commenced by Novartis in cyclo #8 amount to abuse of process--Onus in types of motions lies with moving party--Burden of proof very high--Moving party must show legal process used for ulterior, collateral purpose--As within proceeding, cyclo #8, still pending, Minister prevented from issuing NOC to Apotex for cyclosporine--No indication that, prior to filing of notice of motion on November 29, 2001 to have within proceeding dismissed, Novartis ever intended to prosecute cyclo #8-- Novartis has, since very beginning, maintained cyclo #8 would never be prosecuted--Did not take action for nearly ten months, at which time confronted with notice of status review--Novartis not having interest in proceeding with matter on merits, simply wishes to preserve right of appeal that would be lost if Apotex granted NOC prior to appeal in cyclo #7 being disposed of--Within proceeding being maintained by Novartis for ulterior, collateral purpose, representing abuse of process--Motion allowed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6 (as am. by SOR/98-166, s. 5; 99-379, s. 3).