Procter & Gamble Pharmaceuticals Canada Inc. v. Canada (Health)

Procter & Gamble Pharmaceuticals Canada Inc. v. Canada (Health) Court (s) Database Federal Court of Appeal Decisions Date 2007-02-01 Neutral citation 2007 FCA 31 File numbers A-152-06 Decision Content Date: 20070201 Docket: A-152-06 Citation: 2007 FCA 31 CORAM: DÉCARY J.A. EVANS J.A. MALONE J.A. BETWEEN: PROCTER & GAMBLE PHARMACEUTICALS CANADA INC. Appellant and THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA Respondents Heard at Toronto, Ontario, on February 1, 2007. Judgment delivered from the Bench at Toronto, Ontario, on February 1, 2007. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Date: 20070201 Docket: A-152-06 Citation: 2007 FCA 31 CORAM: DÉCARY J.A. EVANS J.A. MALONE J.A. BETWEEN: PROCTER & GAMBLE PHARMACEUTICALS CANADA INC. Appellant and THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on February 1, 2007) EVANS J.A. [1] This is an appeal by Procter & Gamble Pharmaceuticals Canada Inc. from a decision of Deputy Judge Strayer of the Federal Court dismissing its application for judicial review to set aside the refusal of the Minister of Health to list Canadian patent 2,293,815 (“the ‘815 patent”) on the patent register maintained by the Minister pursuant to section 3 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133. [2] The Judge’s decision is reported as Procter & Gamble Pharmaceuticals Canada Inc., 2006 FC 411. [3] As relevant to this case, section 4 of the Regulations provides that a patent may be included on the register if the invention claimed is for the medicine itself. We are not persuaded that the Judge made any reversible error when he held that the invention claimed in the ‘815 patent was a delivery system for the medicine, and not the medicine itself. [4] We do not accept counsel’s argument that the Judge based his decision on the proposition that a medicine cannot be a formulation comprising an active ingredient and inactive excipients. Rather, after carefully considering the claims of the ‘815 patent, both individually and as a whole, he concluded that the invention claimed by this patent was a delivery system. [5] The present case, like others in this area of the law, must be decided on its own facts. It is not particularly useful to engage in minute comparisons of different patents, considered in cases decided at different stages in the development of the law. [6] For these reasons, the appeal will be dismissed with costs. “John M. Evans” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-152-06 (APPEAL FROM THE FEDERAL COURT STRAYER DJ DATED MARCH 30, 2006, DOCKET NO. T-114-05) STYLE OF CAUSE: PROCTER & GAMBLE PHARMACEUTICALS CANADA INC. v. THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: FEBRUARY 1, 2007 REASONS FOR JUDGMENT OF THE COURT BY: (DÉCARY, EVANS & MALONE JJ.A) DELIVERED FROM THE BENCH BY: EVANS J.A. APPEARANCES: Peter Wilcox, Grant Worden FOR THE APPELLANT Rick Woyiwada FOR THE RESPONDENTS SOLICITORS OF RECORD: Torys LLP Toronto, Ontario FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENTS