On April 24, the Supreme Court of Canada dismissed Apotex's
application for leave to appeal from the Federal Court of Appeal
(FCA) in Apotex Inc. v. Eli Lilly Canada Inc., 2013 FCA
282 , which upheld the decision of the Federal Court (Gauthier J.).
In 2007, the respondent, Eli Lilly
Canada Inc. (Lilly), obtained an order prohibiting the Minister of
Health from issuing a Notice of Compliance (NOC) to Apotex with
respect to its olanzaprine products until the expiry of Lilly's
'113 patent. Shortly after, a generic manufacturer successfully
invalidated the '113 patent on the basis that the promised
utility was not soundly predicted (the decision was upheld on
appeal and the Supreme Court refused to hear the appeal). In
October 2009, Apotex received its NOC and then filed a motion to
set aside the order of prohibition of 2007 pursuant to Rule 399 of
the Federal Court Rules. On September 24, 2010, the
Federal Court (FC) dismissed Apotex's motion, the FCA upheld
the FC's
