Date: 20140127
Docket:
A-318-13
Citation: 2014 FCA 17
CORAM:
SHARLOW J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN: |
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NOVARTIS PHARMACEUTICALS CANADA INC. |
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Appellant |
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and |
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COBALT PHARMACEUTICALS COMPANY and THE MINISTER OF HEALTH |
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Respondents |
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and |
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NOVARTIS AG and ROCHE DIAGNOSTICS GmbH |
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Respondents/Patentees |
Heard at Toronto, Ontario, on January 23, 2014.
Judgment delivered at Ottawa, Ontario, on January 27, 2014.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: WEBB J.A.
NEAR J.A.
Date: 20140127
Docket:
A-318-13
Citation: 2014 FCA 17
CORAM:
SHARLOW J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN: |
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NOVARTIS PHARMACEUTICALS CANADA INC. |
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Appellant |
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and |
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COBALT PHARMACEUTICALS COMPANY AND THE MINISTER OF HEALTH |
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Respondents |
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and |
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NOVARTIS AG AND ROCHE DIAGNOSTICS GMBH |
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Respondents/Patentees |
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] This is an appeal of the decision of Justice Hughes (2013 FC 985) dismissing the application of Novartis Pharmaceuticals Canada Inc. under the Patented Medicines (Notice of Compliance) Regulations (SOR/93-133) for an order prohibiting the Minister of Health from issuing a notice of compliance to Cobalt Pharmaceuticals Company for a generic version of a drug containing zoledronic acid to be administered in once-yearly doses for the treatment of osteoporosis, until after the expiry of Canadian Patent No. 2,410,201.
[2] Cobalt alleged that the 201 patent is invalid for want of patentable subject matter. Justice Hughes found that allegation to be justified because the claims essentially are for a method of medical treatment as explained in Tennessee Eastman Co. v. Commissioner of Patents, [1974] SCR 111. Novartis argues that this conclusion is wrong in law. I do not agree.
[3] To accept the argument of Novartis it would be necessary to conclude in the face of Tennessee Eastman that a method of medical treatment is patentable subject matter, or to conclude that Justice Hughes misconstrued the patent. Having carefully considered the argument of Novartis and the authorities to which the Court was referred, I am unable to reach either conclusion.
[4] For that reason, I would dismiss the appeal with costs.
“K. Sharlow”
J.A.
“I agree
Wyman W. Webb J.A.”
“I agree
D. G. Near J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Docket:
A-318-13
(APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE MR. JUSTICE HUGHES, DATED SEPTEMBER 25, 2013, DOCKET NO. T-724-12)
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STYLE OF CAUSE: |
NOVARTIS PHARMACEUTICALS CANADA INC. v. COBALT PHARMACEUTICALS COMPANY and THE MINISTER OF HEALTH and NOVARTIS AG and ROCHE DIAGNOSTICS GmbH |
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
January 23, 2014
REASONS FOR JUDGMENT BY:
SHARLOW J.A.
CONCURRED IN BY: WEBB, NEAR JJ.A.
DATED:
January 27, 2014
APPEARANCES:
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Anthony G. Creber Livia Aumand
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For The Appellant
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Douglas N. Deeth Kavita Ramamoorthy |
For The Respondents
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SOLICITORS OF RECORD:
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Gowling Lafleur Henderson LLP Ottawa, Ontario
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For The Appellant
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Deeth Williams Wall LLP Toronto, Ontario |
For The Respondents
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