• Prohibition Dismissed on the Basis of Non-Infringement
  • January 11, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Meda AB v. Canada (Health), 2016 FC 1362

    The Court dismissed a prohibition application, which would have prevented Pharmascience from coming to market with its PMS-Zolpidem until the '988 Patent expired. The Court held that Pharmascience's allegation of non-infringement was justified. Given this finding, the Court did not need to consider the alleged Gillette defence.

    Concerning the patent's validity, the Court found that only Pharmascience's allegation of overbreadth in relation to claim 1 was justified. The Court found that Pharmascience's other allegations of invalidity, including anticipation, obviousness and inutility, were not justified.

    The Court dismissed the Applicants' request for an order striking two of Pharmascience's expert affidavits, on the basis that counsel obstructed the cross-examinations of these affiants to the extent that the conduct was abusive and frustrated the process such that their evidence should be rejected. While the interruptions and objections by counsel for Pharmascience were not always necessary or useful, the Court concluded that they were not abusive.

    The Court also dismissed the Applicants' challenge that Pharmascience's evidence listed in Schedule "A" was improper on the basis that the evidence exceeds the facts alleged in the NOA.