Federal Court of Appeal Decisions

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”

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:

SOLICITORS OF RECORD: