Janssen Inc. v. Apotex Inc., 2022 FCA 184 (Abiraterone*)
Justice Mactavish; Justice Locke; Justice Monaghan - 2022-11-01
Read full decision. Automatically generated summary:
In three separate proceedings (A-38-21, A-36-21 and A-37-21) against, respectively, the respondents Apotex, Pharmascience and Dr. Reddy’s Laboratories, the appellants (Janssen) appeal a decision of the Federal Court (2021 FC 7) that declared the 422 Patent, owned by the appellants, invalid for obviousness. The Decision, made following a trial in several actions pursuant to the PM(NOC) Regulations, also ordered that the 422 Patent be removed from the Patent Register defined in the Regulations. ... For the reasons discussed below, I would dismiss the appeals on all issues. ... Although the error in paragraph 184 is palpable and unfortunate, it does indeed appear to be simply a clerical error. I read the word “excluding” in paragraph 184 as “including”. ... To address the appellants’ position, it is necessary to consider whether the Regulations permit, in the context of an action under subsection 6(1) thereof, a counterclaim on claims not asserted in the action, whether by right or with leave of the Court. ... In my view, the intention of the Regulations is to leave to the Federal Court the discretion to permit a counterclaim under subsection 6(3) that includes non-asserted claims. ... Treating the dismissal of the counterclaim as yet another slip of the pen clears up the confusion concerning the Federal Court’s conclusion.
Decision relates to:
- A-267-20 - JANSSEN INC. et al v. APOTEX INC. which is an appeal from a decision dated 2020-10-16 in T-84-19
- A-36-21 - JANSSEN INC. ET AL v. PHARMASCIENCE INC. which is an appeal from 2021 FC 7 in T-182-19
- A-37-21 - JANSSEN INC. ET AL v. DR. REDDY'S LABORATORIES LTD. ET AL which is an appeal from 2021 FC 7 in T-978-19
- A-38-21 - JANSSEN INC. ET AL v. APOTEX INC. which is an appeal from 2021 FC 7 in T-84-19