AB Hassle v. Canada ( Minister of National Health and Welfare )
A-423-95
Décary J.A.
23/9/99
5 pp.
Novopharm had filed submission of notice of compliance (NOC) in respect of omeprazole and served corespondents Astra Pharma and AB Hassle with notice of allegation (NOA) alleging no infringement with respect to six patents-Astra commenced prohibition proceeding seeking order prohibiting Minister from issuing NOC to Novopharm in respect of omeprazole, until after expiration of six patents-Novopharm then advised Minister it was withdrawing its NOA-However, new drug submission apparently not withdrawn-Astra proceeded with application for prohibition-T.D. Judge found as allegation of noninfringement contained in submission for new drug made by Novopharm had not been withdrawn, Astra entitled to have prohibition application heard and disposed of by Court-Then decided Novopharm's allegations not justified-Further found Minister would have no jurisdiction to issue NOC to Novopharm as requirements of Regulations, s. 5(1) had not been met-Appeal therefrom allowed-Application should have been dismissed on ground of mootness: AB Hassle v. Canada (Minister of National Health and Welfare) (1997), 72 C.P.R. (3d) 318 (F.C.T.D.); Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1997), 72 C.P.R. (3d) 468 (F.C.T.D.)-As Novopharm had withdrawn application and as Minister cannot issue NOC if patent not expired and not subject of allegation (Regulations, s. 7), no purpose in prohibiting Minister from doing something already prohibited from doing-Absent evidence Minister prepared to ignore his legal duties and exceed jurisdiction, Court should not embark in hearing of prohibition application-Patented Medicines (Notice of Compliance) Regulations, 1993, SOR/93-133, ss. 5(1), 7.