Merck Frosst Canada Inc. v. Canada ( Minister of Health and Welfare )
T-1306-93
Rothstein J.
3/3/94
14 pp.
Application for order directing witness to re-attend for cross-examination to respond to questions and requests for production of documents and order directing Minister of National Health and Welfare to file certified copy of new drug submission filed by Apotex in respect of norfloxacin-Respondent Kyoring Pharmaceutical owner of patents relating to medicine-Merck & Co. exclusive licensee of patents and Merck Frosst sole sub-licensee-Novopharm granted compulsory licence for same patents-Respondent Apotex issued notice of allegation pursuant to Patented Medicines (Notice of compliance) Regulations, s. 5(3)(b) alleging making, constructing, using or selling of tablets of norfloxacin by Apotex not infringing any claim for medicine-In cross-examination of witnesses, test in assessing whether answer should be ordered, relevance; bona fide intention of directing question to issue in proceeding or to credibility-Issue whether Court should prohibit Minister from issuing to Apotex notice of compliance for norfloxacin and whether Apotex will be infringing existing patents for norfloxacin-Motions with respect to questions and documents dismissed, with one exception-With respect to production of certified copy of new drug submission filed by Apotex to see if patents infringed, information not relevant to compulsory licence of Novopharm nor to agreement between Apotex and Novopharm-Type of information contained in new drug submission relating to product development, product supply, and other commercially sensitive areas-For competitor to obtain such information could be commercially damaging-Onus on applicants to demonstrate, clearly and persuasively in affidavit material, production of new drug submission essential and relevant to issue of infringement: Apotex Inc. v. Canada (Attorney General) (1993), 48 C.P.R. (3d) 296 (F.C.T.D.)-Motions denied-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 5(3)(b).