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.