PATENTS |
Infringement |
Janssen Pharmaceutica Inc. v. Apotex Inc.
T-1970-94
Nadon J.
7/2/00
41 pp.
Application for order prohibiting Minister of National Health and Welfare from issuing Notice of Compliance (NOC) to respondent Apotex in respect of drug cisapride--In Notice of Allegation (NOA), Apotex submitted process to be used for production of cisapride monohydrate not falling within scope of applicants' patent--Patent containing process and product by process claims to cisapride--Because of limitations of Patent Act (specifically s. 41(1)) at time of filing, cisapride not claimed in product per se format--Application allowed--Construction of patent should be reasonable and fair to both patentee and public--Were it not for Patent Act, s. 41(1), patentee would have been entitled to product per se claim to compound cisapride, regardless of how made--Patentee clearly did not intend to be limited to specific processes set forth in patent claim 1 since process limitations only included so as to comply with Act, s. 41(1)--Patent claim 5 included processes of claim 1 and all other obvious chemical equivalent processes--On evidence, Apotex's proposed process falling within scope of patent or obvious chemical equivalent of processes of patent claim 1--Process therefore infringing applicants' patent--Patent Act, R.S.C., 1985, c. P-2, s. 41(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 33, s. 16).