Janssen-Ortho Inc. v. Canada (Minister of Health)
Because the appellant raised a novel argument on appeal about the patent's novelty and the existing record was inadequate to resolve that new issue, the court allowed the appeal, set aside the Federal Court decision, allowed the judicial review application and remitted the matter to the Minister for reconsideration...
Source-derived case information.
- Citation
- 2006 FCA 9
- Parties
- Appellant: Janssen-Ortho Inc.; Respondent: Minister of Health; Respondent: Attorney General of Canada
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 10 January 2006
- Procedural Posture
- Judicial Review Under Patented Medicines (notice of Compliance) Regulations; Appeal to Federal Court of Appeal / Appeal Heard and Judgment Delivered; Matter Remitted to Minister for Reconsideration
- Outcome
- Appeal allowed; Federal Court decision set aside; judicial review allowed; matter remitted to the Minister for reconsideration
- Legal Topics
- Novelty, Method of Administration, Patented Medicines (notice of Compliance) Regulations, Judicial Review, Remittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janssen-Ortho Inc.
Appellant
Minister of Health
Respondent
Attorney General of Canada
Respondent
Procedural Posture
Judicial Review Under Patented Medicines (notice of Compliance) Regulations; Appeal to Federal Court of Appeal / Appeal Heard and Judgment Delivered; Matter Remitted to Minister for Reconsideration
Legal Issues
- 1 Whether the novelty of Canadian Patent No. 2,222,133 lies in administering 17-deacetyl norgestimate as a medicine rather than it being a metabolite formed in vivo
- 2 Whether the argument addressing novelty may be raised for the first time on appeal given the existing record
- 3 Whether the record is adequate to adjudicate the new argument
Ratio Decidendi
Because the appellant raised a novel argument on appeal about the patent's novelty and the existing record was inadequate to resolve that new issue, the court allowed the appeal, set aside the Federal Court decision, allowed the judicial review application and remitted the matter to the Minister for reconsideration permitting the appellant to make the new submissions.
Court Disposition
Appeal allowed; Federal Court decision set aside; judicial review allowed; matter remitted to the Minister for reconsideration
Orders
- Appeal allowed
- Decision of the Federal Court set aside
Full Case Text
Judgment text and source record
1 paragraphs
Janssen-Ortho Inc. v. Canada (Minister of Health) Court (s) Database Federal Court of Appeal Decisions Date 2006-01-10 Neutral citation 2006 FCA 9 File numbers A-313-05 Decision Content Date: 20060110 Docket: A-313-05 Citation: 2006 FCA 9 CORAM: ROTHSTEIN J.A. NOËL J.A. SHARLOW J.A. BETWEEN: JANSSEN-ORTHO INC. Appellant and MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA Respondents Heard at Ottawa, Ontario, on January 10, 2006. Judgment delivered from the Bench at Ottawa, Ontario, on January 10, 2006. REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A. Date: 20060110 Docket: A-313-05 Citation: 2006 FCA 9 CORAM: ROTHSTEIN J.A. NOËL J.A. SHARLOW J.A. BETWEEN: JANSSEN-ORTHO INC. Appellant and MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on January 10, 2006.) SHARLOW J.A. [1] In this appeal, the appellant has argued for the first time that the novelty of Canadian Patent No. 2,222,133 is the use of 17-deacetyl norgestimate as a substance that is proposed to be administered as a medicine, rather than as a substance that is formed in the body after the administration of norgestimate. The argument in the Federal Court and before the Minister was focussed on the method of administration, based on issues that have only recently been finally settled by decisions of this Court. For that reason, we do not find the present record adequate to address the argument now being raised. In these unusual circumstances, it seems to us to be appropriate to allow this appeal, set aside the decision of the Federal Court, allow the appellant's application for judicial review, and refer this matter back to the Minister for reconsideration based on such new submissions that the appellant may present. [2] We note that the Minister has the discretion under subsection 3(4) of the Patented Medicines (Notice of Compliance) Regulations to consult with officials of the Patent Office. The Minister may wish to consider whether this is an appropriate case to initiate such a consultation. "K. Sharlow" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-313-05 STYLE OF CAUSE: JANSSEN-ORTHO INC. Appellant and MINISTER OF HEALTH and ATTORNEY GENERAL OF CANADA Respondents PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: JANUARY 10, 2006 REASONS FOR JUDGMENT OF THE COURT: ROTHSTEIN, NOËL & SHARLOW JJ.A. RENDERED FROM THE BENCH BY: SHARLOW J.A. APPEARANCES: James E. Mills Chantal J. Saunders FOR THE APPELLANT F.B. Woyiwada FOR THE RESPONDENTS SOLICITORS OF RECORD: Gowling Lafleur Henderson Ottawa, Ontario FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENTS