PATENTS |
Infringement |
AB Hassle v. Rhoxalpharma Inc.
T-1447-00
2002 FCT 780, Gibson J.
12/7/02
26 pp.
Applicants seeking to prohibit Minister from issuing Notice of Compliance (NOC) to respondents for drug omeprazole-- Respondents manufacturing generic version of drug, claiming to not infringe patent--Patented use of drug for treatment of Campylobacter bacterial infections, also known as H. pylori infections--Respondent not seeking market approval for use of drug in treatment of Campylobacter infections; listing other indications in notice of allegation (NOA)--Evidence showing doctors and pharmacists prescribe drug for condition whether or not listed as indication--Two sequential NOAs before Court identical, except second omitting Campylobacter infections as indication--Applications separate, distinct, not abuse of process--Not required for NOA and New Drug Submission (NDS) submitted to Minister to be in strict concordance--Respondent intended to modify NDS and in fact did so--Respondent not directly infringing patent--Intent of manufacturer determinative: AB Hassle v. Canada (Minister of National Health and Welfare), [2002] 3 F.C. 221 (T.D.)--Intent irrelevant re indirect infringement-- Infringement can occur indirectly through inducement and procurement--Must be connection between second person and infringement--Appellant arguing new "connection test" formulated in AB Hassle for determination of infringement by inducement or procurement--Reference to "infringement either directly or indirectly" derived from passage in Zeneca Pharma Inc. v. Canada (Minister of National Health and Welfare) (1995), 61 C.P.R. (3d) 190 (F.C.T.D.)--Connection has been made out in this case--Actions of respondent combined with knowledge of practice of physicians, pharmacists, patients sufficient to constitute inducement or procurement of infringement--Any action leading another person to infringe constituting inducement or procurement of infringement: Valmet Oy v. Beloit Canada Ltd. (1988), 20 C.P.R. (3d) 1 (F.C.A.)--Respondent seeking permission to manufacture and sell drug--Evidence showing physicians and pharmacists will prescribe drug for Campylobacter infections whether or not product monograph lists such as indication-- Irrelevant that respondent's monograph does not list as indication, respondent has knowledge of probable, if not inevitable, infringement--If NOC issued respondent will do something it knows, regardless of intent, will infringe patent --Postscript case entered by appellant indicating "use [of drug] contemplated includes use by patient": Proctor & Gamble Pharmaceuticals Canada, Inc. v. Canada (Minister of Health), [2003] 1 F.C. 402 (C.A.)--Not necessary for patentee to demonstrate generic producer's actions will induce or procure patent infringement by patients or others; if generic producer cannot establish that no claims for use of medicine would be infringed by patients or others, justification test not satisfied and prohibition order must be made--Order issued prohibiting Minister of Health from issuing NOC until expiration of patent.