Upjohn Co. v. Commissioner of Patents and Novopharm Ltd., (1985) 63 N.R. 136 (FCA)

• Judge: Heald, Urie and Stone, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 20, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 63 N.R. 136 (FCA)

Upjohn Co. v. Commr. of Patents (1985), 63 N.R. 136 (FCA)

MLB headnote and full text

Upjohn Co. v. Commissioner of Patents and Novopharm Ltd.

(A-774-85)

Indexed As: Upjohn Co. v. Commissioner of Patents and Novopharm Ltd.

Federal Court of Appeal

Heald, Urie and Stone, JJ.

November 20, 1985.

Summary:

Novopharm applied for a compulsory licence under s. 41(4) of the Patent Act respecting a drug patented by Upjohn. The Commissioner of Patents under s. 120(1)(b) of the Patent Rules instructed Novopharm to serve a notice of the application on Upjohn. Upjohn applied to the Federal Court of Appeal for review of the Commissioner's instruction. Novopharm moved to quash the application for review on the grounds that the instruction was not a reviewable decision or order and was an administrative decision not required to be made on judicial or quasi-judicial basis under s. 28 of the Federal Court Act.

The Federal Court of Appeal allowed the motion to quash the application for review.

Courts - Topic 4085

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Decision or order - What constitutes - Novopharm applied for a compulsory licence under s. 41(4) of the Patent Act respecting a drug patented by Upjohn - The Commissioner of Patents under s. 120(1)(b) of the Patent Rules instructed Novopharm to serve a notice of the application on Upjohn - The Federal Court of Appeal held that the Commissioner's instruction did not constitute a decision or order and was not reviewable under s. 28 of the Federal Court Act.

Courts - Topic 4094

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Administrative decisions - Novopharm applied for a compulsory licence under s. 140(4) of the Patent Act respecting a drug patented by Upjohn - The Commissioner of Patents under s. 120(1)(b) of the Patent Rules instructed Novopharm to serve a notice of the application on Upjohn - The Federal Court of Appeal held that the Minister's instruction was an administrative decision not required to be made on a judicial or quasi-judicial basis and was not reviewable under s. 28 of the Federal Court Act - See paragraphs 5 to 8.

Cases Noticed:

Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of Canada Ltd. et al. (1982), 45 N.R. 126; 69 C.P.R.(2d) 136, appld. [para. 4].

Re Doyle and Restrictive Trade Practices Commission et al. (1984), 62 N.R. 283; 6 D.L.R.(4th) 407, appld. [para. 4].

Frank W. Horner Ltd. v. Smith (1983), 52 N.R. 294; 79 C.P.R.(2d) 1, appld. [paras. 6, 8].

American Home Products Corp. v. I.C.N. Canada Ltd. (1985), 5 C.P.R.(3d) 1, refd to. [para. 6].

Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; 24 N.R. 163, appld. [para. 8].

Hoffmann-La Roche Ltd. v. Frank W. Horner Ltd. (1970), 64 C.P.R. 93, refd to. [para. 8].

Statutes Noticed:

Patent Act, R.S.C. 1970, c. P-4, sect. 41(4).

Patent Rules, sect. 120(1) [para. 2].

Counsel:

Immanuel Goldsmith, Q.C., for the applicant;

Carolyn Kobernick, for the respondent Commissioner of Patents;

Malcolm Johnston, Q.C., and Patricia Rae, for the respondent Novopharm Limited.

This case was heard on November 12, 1985, at Toronto, Ontario, before Heald, Urie and Stone, JJ., of the Federal Court of Appeal.

On November 20, 1985, Heald, J., delivered the following judgment for the Federal Court of Appeal: