Apotex Inc. v. Canada ( Attorney General )
T-2951-92
Jerome A.C.J.
20/5/93
7 pp.
Motion to strike originating motion for declaratory, injunctive and mandatory relief by way of judicial review of decisions to eliminate compulsory licensing regime -- Since 1969 Patent Act permitting generic drug companies to obtain compulsory licences from pharmaceutical manufacturers permitting importation and manufacture of drugs otherwise protected by patents in return for royalty fees -- 1987 amendments guaranteed period of exclusivity for patentees of ten years if chemical raw material imported, but pursuant to s. 39.14, only of seven years if raw material made in Canada -- Applicants either possess, have applied for, or were prepared to apply for compulsory licences to manufacture products for preparation in Canada of generic versions of patented pharmaceuticals -- All within seven-year waiting period -- In January, 1992 Ministers announcing elimination of compulsory licensing, retroactive cancellation of all licences to be issued after December 20, 1991, and nullification of all pending licence applications, even if filed before enactment of implementing legislation and before December 20, 1991 -- Bill C-91, eliminating compulsory licensing retroactive to December 20, 1991, introduced in House of Commons in June 1992, passed December 10, 1992 -- As of hearing date not yet considered by Senate -- Application allowed -- Originating notice of motion premature -- Applicants never denied opportunity to make views known -- Applicants admit not taking advantage of opportunity to appear or to present written representations -- Until Bill C-91 becoming law, objections speculative, inappropriate for Court to intervene -- Once Bill becoming law, applicants can apply to bring forward any attack on legislation -- Patent Act, R.S.C., 1985, c. P-4, s. 39.14 (as enacted by R.S.C., 1985 (3rd Supp.), c. 33, s. 15).