Bayer Inc. v. Amgen Canada Inc., 2024 FC 1849
Justice Aylen - 2024-12-04
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The underlying proceeding is a patent infringement action brought under subsection 6(1) of the PMNOC Regulations and a related counterclaim. ... Now before the Court is a motion brought by Amgen, pursuant to subsection 6.07(1) of the PMNOC Regulations, for a declaration that the 276 Patent is ineligible for inclusion on the Patent Register and a declaration that the 24-month statutory stay be lifted in relation to the 276 Patent. Amgen asserts that the 276 Patent does not contain a claim for the very change of use approved through the issuance of a Notice of Compliance [NOC] with respect to the Plaintiffs’ Supplementary New Drug Submission [SNDS] 204121. For the reasons that follow, I am satisfied that Amgen has demonstrated that the 276 Patent is ineligible for inclusion on the Patent Register. Accordingly, the motion shall be granted, with costs. ... It is this divorcing of the genetic component of the 276 Patent from the change in use approved by the NOC in response to SNDS 204121 that leads me to conclude that the use claimed in Claim 58 is not the “very change in use” at issue.
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