Schering Canada Inc. et al. v. Nu-Pharm Inc. et al., (1994) 85 F.T.R. 271 (TD)

• Judge: Rothstein, J.
• Court: Federal Court (Canada)
• Case Date: September 08, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 85 F.T.R. 271 (TD)

Schering Can. Inc. v. Nu-Pharm Inc. (1994), 85 F.T.R. 271 (TD)

MLB headnote and full text

In The Matter Of an application for an Order pursuant to section 55.2(4) of the Patent Act and section 6 of the Patented Medicines (Notice of Compliance) Regulations.

Schering Canada Inc. and Schering Corporation (applicants) v. Nu-Pharm Inc. and the Minister of National Health and Welfare (respondents)

(T-2274-93; T-1528-94)

Indexed As: Schering Canada Inc. et al. v. Nu-Pharm Inc. et al.

Federal Court of Canada

Trial Division

Rothstein, J.

September 22, 1994.

Summary:

Nu-Pharm filed a notice of allegations. Schering Canada et al. applied for an order prohibiting the Minister from issuing a notice of compliance until after its relevant patents expired. Nu-Pharm did not file its evidence in time under the Federal Court Rules. An application for an extension was refused. Nu-Pharm then filed a second notice of allegations which was almost identical to the first. Schering alleged that the second notice of allegations was not valid.

The Federal Court of Canada, Trial Division, held that the second notice of allegations was invalid.

Food and Drug Control - Topic 1105

Drugs - New drugs - Notice of compliance - Intervention on application for - Notice of allegations - Nu-Pharm filed a notice of allegations - Schering applied for an order prohibiting the Minister from issuing a notice of compliance until after its relevant patents expired - Nu-Pharm did not file its evidence in time under the Federal Court Rules - An application for an extension was refused - Nu-Pharm then filed a second notice of allegations which was almost identical to the first - The Federal Court of Canada, Trial Division, held that the second notice of allegations was invalid - The Patented Medicines (Notice of Compliance) Regulations did not contemplate multiple notices of allegations setting forth the same allegations in order to circumvent the time limits in the Rules.

Cases Noticed:

Bayer AG v. Canada (Minister of Health and Welfare) (1993), 163 N.R. 183; 51 C.P.R.(3d) 329 (F.C.A.), refd to. [para. 4].

AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 14 O.R.(3d) 161 (Gen. Div.), refd to. [para. 11].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1994), 81 F.T.R. 313 (T.D.), refd to. [para. 13].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1994), 81 F.T.R. 116 (T.D.), refd to. [para. 14].

Statutes Noticed:

Federal Court Rules, Part V.1, rule 1603(3) [para. 4]; rule 1606(1) [para. 5].

Patent Act, R.S.C. 1985, c. P-4, sect. 55.2 [para. 1].

Patent Act Regulations (Can.), Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, sect. 5(1) [para. 2]; sect. 5(2) [para. 16]; sect. 5(3) [para. 2]; sect. 6(1) [paras. 3, 8].

Patented Medicines (Notice of Compliance) Regulations - see Patent Act Regulations (Can.).

Counsel:

Anthony Creber, for the applicants;

Harry Radomski, for the respondents.

Solicitors of Record:

Gowling, Strathy & Henderson, Ottawa, Ontario, for the applicants;

Goodman & Goodman, Toronto, Ontario, for the respondents.

These applications were heard on September 8, 1994, at Ottawa, Ontario, before Rothstein, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 22, 1994.