• Principles of Comity Should Not Override Fairness
  • March 3, 2014
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • ValeantCanada LP v. Cobalt Pharmaceuticals Company, 2013 FC 1254

    Drug: diltiazem

    Cobalt brought a motion pursuant to s. 6(5) of the NOC Regulations, to dismiss the proceeding as an abuse of process. The Court dismissed the motion with costs to Valeant.

    Two patents are at issue in the underlying NOC proceeding, but only one is the subject of the within motion. That patent had been the subject of a proceeding between Valeant’s corporate predecessor and a different generic company. The Valeant company was unsuccessful in the application on the basis of non-infringement, and the appeal was dismissed as moot (decisions here and here). Cobalt is arguing non-infringement on the same basis as the finding in the previous proceeding.

    The Court held that the “blind application of the principle of consistency should not and cannot override fairness.” The Court then held that it is not appropriate on a motion regarding abuse of process to conduct a full assessment of the previous decision to determine whether an exception to judicial comity is warranted. In addition, the Court held that launching an infringement action cannot be the only method by which a patentee can challenge another interpretation of the claims from a previous NOC proceeding. The Court held that Valeant was not engaging in an abuse of process, and even if abuse had been found, the Court would have exercised its discretion to allow the proceeding to continue.