• Amgen Canada Inc., Amgen Inc. v. Apotex Inc., Minister of Health (FC) (Civil) (By Leave) (37124)
  • October 28, 2016 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • On October 27, the Supreme Court will announce the result of a leave application which asks, in determining whether to hear moot appeals, should appellate courts apply categorical rules for certain classes of cases that will eliminate any right of appeal for entire class, or are courts required to exercise discretion on a case by case basis in accordance with the decision in Borowski v. Canada. The following summary was provided by the Supreme Court.

    Intellectual property - Patents - Medicines - Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 - Appeals - Mootness - Federal Court dismissing Amgen's motion for order of prohibition and Minister issuing notice of compliance to Apotex to market generic version of Amgen's drug - Apotex bringing action for section 8 damages - Amgen appealing after issuance of notice of compliance - Apotex's motion to dismiss appeal as moot granted - In determining whether to hear moot appeals, should appellate courts apply categorical rules for certain classes of cases that will eliminate any right of appeal for entire class, or are courts required to exercise discretion on a case by case basis in accordance with decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342?

    Amgen applied for an order under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 ("Regulations") prohibiting the Minister of Health from issuing a notice of compliance to Apotex for its generic version of Amgen's filgrastim pharmaceutical drug. The Federal Court dismissed this application and Amgen appealed that decision. Before the appeal could be heard, however, the Minister issued a notice of compliance to Apotex for its generic version of filgrastim. Apotex moved to dismiss the appeal on the ground that the subject-matter of the appeal was moot as there was no longer anything to prohibit.