PATENTS
Infringement
Appeal from Federal Court decision ((2004), 31 C.P.R. (4th) 21) dismissing application by Pfizer Canada Inc., Pfizer Inc. for order prohibiting Minister of Health from issuing notice of compliance (NOC) permitting Apotex Inc. to sell Apo-azithromycin tablets, until Pfizer’s Canadian Letters Patent No. 1314876 ('876 patent) expired—Snider J. holding Pfizer failed to prove on balance of probabilities Apotex’s Notice of Allegation (NOA) not justified—Snider J. derived proposition from case law adverse inference may be drawn from party’s failure to produce evidence of fact that better placed than other party to prove, when evidence peculiarly within knowledge of that party and other party lacks means of proving it—Applications Judge concluding inference not triggered as Pfizer had means of discovering content of tablets—No palpable, overriding error in that conclusion—Reasons for not accepting Pfizer’s argument law should more readily require drawing of adverse inference from non-production of drugs when content in issue in NOC ases: summary nature of prohibition proceeding, absence of discovery; absence of duty on applicants making Abbreviated New Drug Submission to supply samples of drug to Minister, hence to provide them under Patented Medicines (Notice of Compliance) Regulations, s. 6(7) to applicant in prohibition proceeding; fact that dismissal of application for order of prohibition only denies applicant benefit of statutory stay on entry onto market of possibly infringing product, and not precluding subsequent action for infringement, complete with discovery—Snider J. correctly formulated legal test for determining adequacy of NOA: dispute about application to facts—Open to her to conclude Apotex’s statement in NOA tablets contained “azithromycin itself” sufficient to alert Pfizer to basis of Apotex’s allegation that it would not infringe because azithromycin tablets will not contain dihydrate—Appeal dismissed—Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(7) (as am. by SOR/98-166, s. 5).
Pfizer Canada Inc. v. Apotex Inc. (A-119-04, 2004 FCA 398, Evans J.A., judgment dated 25/11/04, 9 pp.)