PM(NOC) Invalidity Grounds May Extend Beyond NOA

The Federal Court, in its recent decision Sunovion Pharmaceuticals Canada Inc. v. Taro Pharmaceuticals Inc. (2021 FC 37), allowed amendments to a Statement of Defence in a PM(NOC) action that went beyond the grounds of invalidity set out in the Defendant's Notice of Allegation.

On September 17, 2017, the PM(NOC) Regulations were significantly amended as a part of Canada's implementation of the CETA agreement with the EU, converting what had been a patent linkage application driven regime – litigated like a summary judgment motion – into an action regime – litigated mostly like a conventional patent infringement trial. And under the old application driven regime, the Notice of Allegation defined the issues that could be raised during the PM(NOC) proceeding.