Imperial Chemical Industries plc v. Novopharm Ltd., (1991) 126 N.R. 377 (FCA)

• Judge: Mahoney, Stone and Linden, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 27, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 126 N.R. 377 (FCA)

Imperial Chemical Ind. v. Novopharm (1991), 126 N.R. 377 (FCA)

MLB headnote and full text

Imperial Chemical Industries PLC (appellant) v. Novopharm Limited (respondent)

(A-151-87)

Indexed As: Imperial Chemical Industries plc v. Novopharm Ltd.

Federal Court of Appeal

Mahoney, Stone and Linden, JJ.A.

March 27, 1991.

Summary:

The Commissioner of Patents granted a compulsory licence and fixed a royalty. The patentee appealed on the main ground that there was no evidence on which to fix a royalty.

The Federal Court of Appeal allowed the appeal and remitted the issue of royalty to the Commissioner.

Patents of Invention - Topic 5745

Compulsory licences - Royalties - Fixing of - Evidence - The Federal Court of Appeal set aside a royalty fixed by the Commissioner of Patents, because there was no evidence on which to fix the royalty.

Cases Noticed:

Imperial Chemical Industries PLC v. Apotex Inc. (1991), 126 N.R. 149 (F.C.A.), appld. [para. 1].

American Home Products Corp. v. ICN Canada Ltd. (1988), 84 N.R. 69; 19 C.P.R.(3d) 257 (F.C.A.), refd to. [para. 3].

Smith, Kline and French Laboratories Ltd. v. Apotex Inc. (1988), 82 N.R. 177; 17 C.P.R.(3d) 449 (F.C.A.), refd to. [para. 3].

Statutes Noticed:

Patent Act, R.S.C. 1985, c. P-4, sect. 39(4).

Counsel:

James D. Kokonis and Gunars Gaikis, for the appellant;

James O'Grady, for the respondent.

Solicitors of Record:

Smart and Biggar, Toronto, Ontario, for the appellant;

O'Grady and Young, Ottawa, Ontario, for the respondent;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the intervenor.

This case was heard on March 19, 1991, at Ottawa, Ontario, before Mahoney, Stone and Linden, JJ.A., of the Federal Court of Appeal.

On March 27, 1991, Mahoney, J.A., delivered the following judgment for the Federal Court of Appeal.