Edited by
Chantal Saunders 
and
Beverley Moore
Other Cases of Interest
Teva Canada Limited v. sanofi-aventis Canada Inc.
Drug: ramipril This was an appeal of the decision of the Judge, upholding the decision of the Prothonotary, to strike out Teva's claim to permanent loss of market share in an action brought pursuant to section 8 of the NOC Regulations. The Court of Appeal found that, following a prior decision, it is plain and obvious that the claim for loss of a permanent market share is hopeless and discloses no reasonable cause of action. One Judge in the Court of Appeal dissented and would have allowed the amendment to Teva's pleadings on the basis that damages contemplated by section 8 are intended to be analogous to an undertaking that is provided when seeking an interlocutory injunction.
Teva Canada Limited v. Canada (Health)
Drug: ELOXATIN
This is a judicial review application by Teva in respect of the refusal of the Minister of Health (the Minister) to remove sanofi's drug ELOXATIN from the Register of Innovative Drugs (the Register). The issue to be determined by the Court was the correct interpretation of the term "approved" in respect of data protection for an innovative drug. In particular, ELOXATIN had been sold for a number of years pursuant to the Special Access Program (SAP) before being granted a Notice of Compliance (NOC). The drug was added to the Register after being granted the NOC. Teva alleged that the medicinal ingredient had been approved when it was being sold pursuant to the SAP and therefore could not meet the criteria for being listed on the Register.
The Court considered several preliminary issues. First, the Court found that the Minister is entitled to add and remove drugs from the Register in response to questions from generic manufacturers. The Court found that Teva had standing to bring the present application because it had attempted to file an ANDS, which was rejected in light of the listing of ELOXATIN on the Register.
The Court found that there is no finding that the drug is safe and effective, and approval granted as the term is used in the data protection provisions of the Food and Drugs Regulations, in respect of a drug provided pursuant to the SAP.
BBM Canada v. Research in Motion Limited
This was an appeal from a decision that found a claim relating to trade-mark infringement, depreciation of goodwill and passing off may not be brought as an application in the Federal Court. The Court of Appeal found that the purpose of the Trade-marks Act is best fulfilled by allowing access to the Court that is as expeditious and proportionate as possible and therefore, the Trade-marks Act should be interpreted as permitting proceedings to proceed by way of application or action.
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CIPO's 2011-2012 Business Plan is available.
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