Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196

Amgen was unsuccessful in a proceeding brought pursuant to the NOC Regulations. It appealed that decision. Apotex brought the within motion to dismiss the appeal as moot. The motion was granted.

Amgen argued that the notice of compliance issued by the Minister concerned only one of the dosage strengths of the pharmaceutical product on the market. Disputes arose during cross-examinations, but Amgen did not bring a motion to sort out the refusals, instead offering to do so only if the FCA was of the view that it should. However, the FCA held that it does not advise parties regarding whether they should bring motions, and the record is as it stands. Based on that evidentiary record, the FCA held that the other dosage strength issue was not before the Minister. The Minister could not have been the subject of a prohibition application concerning that product, thus it is not within the ambit of the appeal.

As the appeal only concerned the dosage strength for which a NOC had issued, the appeal was moot. The Court further refused to exercise its discretion to hear the appeal, holding that even though a section 8 proceeding had been started by Apotex, Amgen can still bring an action for patent infringement, and can assert its patent against the section 8 claim.