Bristol Myers Squibb Canada Inc. v. Canada (Attorney General)
The Trial Division did not err: the Minister's decision to exclude the patent from the Register is upheld because the earlier Apotex decision is distinguishable given the subsequent introduction of subsection 4(6) to the Regulations, and the Court of Appeal in Apotex declined to rule on the propriety of filing a...
Source-derived case information.
- Citation
- 2002 FCA 32
- Parties
- Appellant: BRISTOL-MYERS SQUIBB CANADA INC.; Respondent: ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH; Respondent: APOTEX INC.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 23 January 2002
- Procedural Posture
- Appeal / Decision on Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Patented Medicines (notice of Compliance) Regulations, Eligibility for Patent Register, Subsection 4(6), Second Patent List
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH
Respondent
APOTEX INC.
Respondent
Procedural Posture
Appeal / Decision on Appeal
Legal Issues
- 1 Whether the Trial Division erred in refusing to set aside the Minister's decision that the patent was ineligible for inclusion on the Register under s.3 of the Patented Medicines (Notice of Compliance) Regulations
- 2 Whether the decision in Apotex (McGillis J.) applies after introduction of subsection 4(6) and whether a second patent list for the same drug is appropriate
Ratio Decidendi
The Trial Division did not err: the Minister's decision to exclude the patent from the Register is upheld because the earlier Apotex decision is distinguishable given the subsequent introduction of subsection 4(6) to the Regulations, and the Court of Appeal in Apotex declined to rule on the propriety of filing a second patent list for the same drug.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs to both respondents
Full Case Text
Judgment text and source record
1 paragraphs
Bristol Myers Squibb Canada Inc. v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2002-01-23 Neutral citation 2002 FCA 32 File numbers A-44-01 Decision Content Date: 20020123 Docket: A-44-01 Neutral citation: 2002 FCA 32 CORAM: RICHARD C.J. STRAYER J.A. NOËL J.A. BETWEEN: BRISTOL-MYERS SQUIBB CANADA INC. Appellant (Applicant) and ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH and APOTEX INC. Respondents (Respondents) Heard at Ottawa, Ontario, on January 23, 2002. Judgment delivered from the Bench at Ottawa, Ontario, on January 23, 2002. REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J. Date: 20020123 Docket: A-44-01 Neutral citation: 2002 FCA 32 CORAM: RICHARD C.J. STRAYER J.A. NOËL J.A. BETWEEN: BRISTOL-MYERS SQUIBB CANADA INC. Appellant (Applicant) and ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH and APOTEX INC. Respondents (Respondents) REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario on January 23, 2002.) RICHARD C.J. [1] The sole issue raised in this appeal is whether the Trial Division, reported at [2001] F.C.J. no. 51, erred in refusing to set aside the Minister's decision that the patent at issue was ineligible for inclusion on the Register maintained under section 3 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (March 12, 1993), as amended by SOR/98-166 (March 12, 1998) and by SOR/99-379 (October 1, 1999), (the Regulations). [2] In our view, the application Judge did not err in upholding the Minister's decision. [3] The appellant relied on the decision of Madam Justice McGillis in Apotex Inc. v. Canada (Minister of Health), (1999), 87 C.P.R. (3d) 271 (F.C.T.D.), as affirmed by the Court of Appeal, (2001), 11 C.P.R. (4th) 538 (F.C.A.). [4] In our view, that decision is distinguishable because it was decided prior to the introduction of subsection 4(6) of the Regulations and involved a supplement to a new drug submission based on a new indication or use. [5] In affirming the decision of McGillis J., the Court of Appeal expressly declined to deal with the issue of whether the filing of a second patent list with regard to the same drug was appropriate. [6] Accordingly, the appeal will be dismissed with costs to both respondents. "J. Richard" Chief Justice FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-44-01 STYLE OF CAUSE: BRISTOL-MYERS SQUIBB CANADA INC. and ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH and APOTEX INC. PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: JANUARY 23, 2002 REASONS FOR JUDGMENT : RICHARD C.J. DATED: JANUARY 23, 2002 APPEARANCES: Mr. Anthony Creber FOR THE APPELLANT Mr. Martin Mason Mr. Frederick Woyiwada FOR THE RESPONDENT (ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH) Mr. Harry Radomski FOR THE RESPONDENT Mr. Andrew Brodkin (APOTEX INC.) SOLICITORS OF RECORD: Gowlings FOR THE APPELLANT Ottawa, Ontario Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada (ATTORNEY GENERAL OF Ottawa, Ontario CANADA, THE MINISTER OF HEALTH) Goodmans FOR THE RESPONDENT Toronto, Ontario (APOTEX INC.)