Janssen Inc. v. Mylan Pharmaceuticals ULC

Janssen Inc. v. Mylan Pharmaceuticals ULC
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-01-17
Neutral citation
2011 FCA 16
File numbers
A-444-10
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110117
Docket: A-444-10
Citation: 2011 FCA 16
CORAM: SHARLOW J.A.
DAWSON J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
JANSSEN INC. AND
JANSSEN PHARMACEUTICA N.V.
Appellants
and
MYLAN PHARMACEUTICALS ULC AND
THE MINISTER OF HEALTH
Respondents
Heard at Toronto, Ontario, on January 17, 2011.
Judgment delivered from the Bench at Toronto, Ontario, on January 17, 2011.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110117
Docket: A-444-10
Citation: 2011 FCA 16
CORAM: SHARLOW J.A.
DAWSON J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
JANSSEN INC. AND
JANSSEN PHARMACEUTICA N.V.
Appellants
and
MYLAN PHARMACEUTICALS ULC AND
THE MINISTER OF HEALTH
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on January 17, 2011)
SHARLOW J.A.
[1] It is well established that an appeal from a judgment dismissing an application under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 becomes moot once the notice of compliance is issued because it is no longer possible for the Court to prohibit the Minister from issuing the notice of compliance. That is clearly the case here. Therefore, the only issue is whether, based on Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, and other relevant jurisprudence, this Court should hear the appeal despite its mootness.
[2] Despite the compelling and able submissions of Mr. Markwell, we are not persuaded that this moot appeal should be heard. We see nothing to distinguish this case from the many cases in which this Court has declined to hear a moot appeal in a proceeding under the NOC Regulations. We are all of the view that the question of patent law raised in this case is best determined in the context of an action for infringement of the patent in issue.
[3] For that reason, the motion to dismiss the appeal for mootness will be granted with costs.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-444-10
(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE BARNES DATED NOVEMBER 10, 2010, DOCKET NO. T-175-09)
STYLE OF CAUSE: JANSSEN PHARMACEUTICA N.V. v. MYLAN PHARMACEUTICALS ULC AND THE MINISTER OF HEALTH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 17, 2011
REASONS FOR JUDGMENT
OF THE COURT BY: SHARLOW J.A.
DAWSON J.A.
LAYDEN-STEVENSON J.A.
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
Jason Markwell
Amy E. Grenon
FOR THE APPELLANTS
Tim Gilbert
Nathaniel Lipkus
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Ogilvy Renaud LLP
Toronto, Ontario
FOR THE APPELLANTS
Gilbert’s LLP
Toronto, Ontario
FOR THE RESPONDENTS