Intellectual Property Weekly Abstracts Alert - Week Of March 26, 2012

Edited by Chantal Saunders and Beverley Moore

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The Court of Appeal sends s.8 case back to Trial Judge for redetermination

Apotex Inc. v. Merck & Co., Inc. and Merck Frosst Canada Co. et al

Drug: lovastatin

The Federal Court of Appeal (FCA) has granted Apotex' appeal and sent a case considering s. 8 of the Patented Medicines (Notice of Compliance) Regulations (the Regulations) back to the Trial Judge for redetermination. The Trial decision can be found here and our summary of it can be found here.

The FCA considered the chronology of events and held that despite Apotex having been granted an NOC prior to the 1998 amendments to the Regulations, Merck's appeal of the prohibition proceeding was still pending before the Court. The FCA did not dismiss Merck's appeal until 1999. Thus, the 1998 Regulations and not the 1993 Regulations were applicable to Apotex' s. 8 claim. The FCA held that even though the issue of the NOC rendered the