PATENTS |
Practice |
AstraZeneca AB v. Apotex Inc.
T-766-03
2004 FC 761, von Finckenstein J.
25/5/04
11 pp.
Appeals from prothonotary's order denying leave to introduce affidavit evidence describing results of testing of Apotex's omeprazole magnesium capsules by reason of inexcusable delay--In main proceedings, applicants seeking orders prohibiting Minister of Health (Minister) from issuing notice of compliance (NOC) to respondents for omeprazole capsules pending expiry of patents--Evidence related to testing of tablets vital to outcome of case--Apotex refused to supply sample tablets to AstraZeneca--AstraZeneca showed no urgency in trying to obtain samples--Time is of the essence in proceeding under Patented Medicines (Notice of Compliance) Regulations--Automatic stay expiring in 24 months and Court does everything in its power to ensure hearing scheduled, decision made within that timeframe-- Very little time left to complete necessary pre-hearing steps before scheduled hearing date--Prothonotary correct in finding inexcusable delays by both sides--But given culpability of both sides in causing delay, Court becomes victim--If order allowed to stand, hearing will proceed without best evidence, which is unacceptable result--Not in interest of Court to have matters proceed when best evidence cannot be furnished in time thanks to strategic manoeuvring of parties--As delay favouring patent-holder, Court normally reluctant to jeopardize hearing date--But Apotex not innocent victim, rather suffering as result of backfire of its own delaying tactics--To prevent Court from not having best evidence, prothonotary's decision set aside--Appeal allowed --Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.