Eli Lilly Canada Inc. v. Novopharm Limited, 2007 CAF 359 (2007)

Extract

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Eli Lilly Canada Inc. v. Novopharm Limited, 2007 CAF 359 (2007)

Date: 20071106

Docket: A-274-07

Citation: 2007 FCA 359

PRESENT: SEXTON J.A.

PELLETIER J.A.

RYER J.A.

BETWEEN:

ELI LILLY CANADA INC.

Appellant

and

NOVOPHARM LIMITED

Respondent

and

THE MINISTER OF HEALTH

Respondent

and

ELI LILLY AND COMPANY LIMITED

Respondent/Patentee

Heard at Toronto, Ontario , on November 5, 2007.

Order delivered at Toronto, Ontario , on November 6, 2007.

REASONS FOR ORDER BY: SEXTON J.A.

CONCURRED IN BY: RYER J.A.

DISSENTING REASONS BY: PELLETIER J.A.

Date: 20071106

Docket: A-274-07

Citation: 2007 FCA 359

PRESENT: SEXTON J.A.

PELLETIER J.A.

RYER J.A.

BETWEEN:

ELI LILLY CANADA INC.

Appellant

and

NOVOPHARM LIMITED

Respondent

and

THE MINISTER OF HEALTH

Respondent

and

ELI LILLY AND COMPANY LIMITED

Respondent/Patentee

REASONS FOR ORDER

SEXTON J.A.

Introduction

[1] This is a motion by the Respondent, Novopharm Limited (“Novopharm”) to dismiss the appeal of the Order of Mr. Justice Hughes dated June 5, 2007 (the “June 5 Order”) on the ground that the appeal is moot.

[2] The June 5 Order dismissed Eli Lilly Canada’s (“Eli Lilly”) application for an order prohibiting the Minister of Health (the “Minister”) from issuing a Notice of Compliance (“NOC”) to Novopharm for its 2.5 mg, 5 mg , 7.5 mg, 10 mg and 15 mg olanzapine tablets. After the June 5 Order, the Minister granted an NOC to Novopharm.

[3] This Court has consistently held that, once an NOC has been issued, a patent holder’s appeal from an application to prohibit the issuance of an NOC will be dismissed due to mootness. Nevertheless, Eli Lilly argues, that, inter alia , the recent decision in Sanofi-Aventis Canada Inc. v. Novopharm Limited et al. 2007 FCA 163, 282 D.L.R. (4th) 476, 59 C.P.R. (4 th ) 416, (leave to appeal to the S.C.C. dismissed, [2007] S.C.C.A. No. 311) (“ Sanofi-Aventis ”) demands that this Court revisit the law with respect to a patent holder’s right to appeal an otherwise moot NOC proceeding.

[4] For the reasons that follow, I disagree with this submission and would allow Novopharm’s motion and dismiss this appeal on the ground of mootness.

Background

[5] This motion arises from an appeal from prohibition proceedings pursuant to the Patented Medicines (Notice of Compliance) Regulations , SOR/93-133 (the “ NOC Regulations &rdqu...

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