Pfizer Canada Inc. et al. v. Canada (Minister of Health) et al., (2008) 379 N.R. 214 (FCA)

• Judge: Sexton, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 379 N.R. 214 (FCA);2008 FCA 138

Pfizer Can. Inc. v. Can. (2008), 379 N.R. 214 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. AU.027

Ranbaxy Laboratories Limited (appellant) v. Pfizer Canada Inc., Warner-Lambert Company, LLC and The Minister of Health (respondents)

(A-458-07; 2008 FCA 138)

Indexed As: Pfizer Canada Inc. et al. v. Canada (Minister of Health) et al.

Federal Court of Appeal

Sexton, J.A.

April 15, 2008.

Summary:

In Notice of Compliance proceedings, the Federal Court granted an order of prohibition to Pfizer Canada Inc. and Warner-Lambert Co., LLC ("Pfizer") against Ranbaxy Laboratories Ltd. with respect to Canadian Patent No. 2,220,018 (the '018 Patent) and dismissed a request for an order of prohibition with respect to Canadian Patent No. 2,220,455 (the '455 Patent) (see (2007), 328 F.T.R. 41). Ranbaxy appealed from the order with respect to the '018 Patent. Pfizer cross-appealed from the order with respect to the '455 Patent. Apotex Inc. applied for leave to intervene in the appeal. Apotex had been sued for patent infringement by Eli Lilly and it claimed that an issue in that trial would be affected by the decision in the present appeal.

The Federal Court of Appeal, per Sexton, J.A., dismissed Apotex's application to intervene in the appeal.

Food and Drug Control - Topic 1111.1

Drugs - New drugs - Notice of compliance - Practice - [See Practice - Topic 685 ].

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - In Notice of Compliance (NOC) proceedings, the Federal Court granted an order of prohibition to Pfizer Canada Inc. and Warner-Lambert Co., LLC ("Pfizer") against Ranbaxy Laboratories Ltd. with respect to Canadian Patent No. 2,220,018 and dismissed a request for an order of prohibition with respect to Canadian Patent No. 2,220,455 - Ranbaxy appealed - Pfizer cross-appealed - Apotex Inc. applied for leave to intervene in the appeal - Apotex had been sued for patent infringement by Eli Lilly and it claimed that an issue in that trial would be affected by the decision in the present appeal - The Federal Court of Appeal, per Sexton, J.A., dismissed Apotex's application to intervene in the appeal - It was not clear that a decision in the appeal would absolutely resolve the issue in the infringement action between Apotex and Eli Lilly - It would be preferable for the issue raised by Apotex to be determined in the litigation in which it was engaged with Eli Lilly - Further, it would be difficult to exclude Eli Lilly if Apotex was allowed to transport the main issue in its proceeding with Eli Lilly into the appeal - Allowing both Apotex and Eli Lilly to intervene would complicate and delay the appeal - NOC proceedings were intended to be summary in nature and of short duration - Allowing intervention in NOC proceedings should be done only in the clearest of cases and only where it was clearly warranted - Such was not the case here.

Cases Noticed:

Saccharin Corp. v. Anglo-Continental Chemical Works Ltd. (1900), 17 R.P.C. 307 (U.K.H.C.), refd to. [para. 5].

Eli Lilly Canada Inc. v. Novopharm Ltd. et al. (2007), 370 N.R. 140; 2007 FCA 359, leave to appeal denied (2008), 386 N.R. 381 (S.C.C.), refd to. [para. 11].

Eli Lilly Canada Inc. v. Novopharm Ltd. et al. (2007), 371 N.R. 29; 2007 FCA 329, refd to. [para. 13].

Counsel:

Vincent M. de Grandpré and Damien McCotter, for the respondents, Pfizer Canada Inc. and Warner-Lambert Company, LLC;

Harry Radomski, David Scrimger and Miles Hastie, for the proposed intervenor, Apotex Inc.

Solicitors of Record:

Dimock Stratton LLP, Toronto, Ontario, for the appellant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, the Minister of Health;

Torys LLP, Toronto, Ontario, for the respondents, Pfizer Canada Inc. and Warner- Lambert Company, LLC;

Goodmans LLP, Toronto, Ontario, for the proposed intervenor, Apotex Inc.

This application was dealt with in writing without the appearance of parties, by Sexton, J.A., of the Federal Court of Appeal, who delivered the following decision on April 15, 2008.