Appeal In NOC Proceeding Dismissed As Moot (Intellectual Property Weekly Abstracts Bulletin, Week Of February 9, 2015)

Edited by Chantal Saunders , Beverley Moore and Adrian Howard PATENTS

Appeal in NOC Proceeding Dismissed as Moot

Janssen Inc. v. Teva Canada Limited, 2015 FCA 36

The Court of Appeal granted Teva's motion to have an appeal from a NOC Proceeding dismissed as moot. The Respondent's request for an oral hearing of the motion was denied.

The FCA held that the appeal was moot, as Teva had received its NOC. The FCA also refused to exercise its discretion to hear the appeal, holding that it would not serve judicial economy. The FCA dismissed the argument that the Comprehensive Economic and Trade Agreement with Europe should prompt it to hear the appeal, as the treaty has not yet been implemented by statute. Furthermore, a new Notice of Allegation relating to a different route of administration was held to not give rise to an adversarial context between the parties in this case.

Finding of Non-Infringement Upheld onAppeal

Bristol-Myers Squibb & Gilead Sciences, LLC v. Teva Canada Limited, 2015 FCA 3

The Court of Appeal dismissed an appeal of a decision of the Court in a NOC proceeding finding that an allegation of non-infringement was justified.

The Court of Appeal confirmed the finding by the Court that the tests conducted by the Appellants were not shown to be a "reliable proxy" for the process used by Teva to manufacture its tablets. As a result, the Appellants had not proven that the tablets made by Teva infringed the patent.

The Court of Appeal stated that the requirement that a second person present evidence to put their allegations into play relates only to allegations of invalidity in light of the presumption of validity. There is no initial onus on the second person to introduce evidence. The Court of Appeal also found that the Appellants did not demonstrate any palpable and overriding error by the Court in failing to draw an adverse inference against Teva for not producing its tablets.

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