Eli Lilly and Co. v. Apotex Inc.
T-1537-93
Simpson J.
12/9/95
7 pp.
Application under Patented Medicines (Notice of Compliance) Regulations, s. 6(1) for order prohibiting Minister of National Health and Welfare from issuing notices of compliance to Apotex Inc. in connection with drug known as Cefaclor until expiration of ten Canadian Letters Patent-Patents at issue containing product by process claims for intermediate substances used exclusively in synthesis of Cefaclor-None of them contain claims for Cefaclor itself-Whether intermediates medicines under Regulations-Cefaclor antibiotic, unquestionably medicine as defined in Regulations-Intermediates substances intended and destined for use in manufacture of Cefaclor-No commercially viable means of producing Cefaclor without using at least two of the intermediates-Intermediates included under Patent Act, s. 41 as intended for medicine-Language of s. 41 different from that of Regulations, s. 2-Act, s. 41(4) requires use for medicine, Regulations, s. 2 requires use for treatment-S. 41 and related case law not aids in interpretation of definition of medicine in Regulations-Intermediates not medicines-Patents for intermediates not containing claims for "medicine itself"-Patents improperly included on Lilly's patent lists-Application dismissed-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 2, 6(1)-Patent Act, R.S.C. 1970, c. P-4, s. 41(4).