Date: 20060110
Docket: A-313-05
Citation: 2006 FCA 9
CORAM: ROTHSTEIN 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.
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.)
[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 |