Bayer Inc. v. Pharmaceutical Partners of Canada Inc., 2015 FC 388

Drug: AVELOX® I.V.® moxifloxacin

The Court has allowed a motion to strike portions of an application pursuant to paragraph 6(5)(b) of the PM(NOC) Regulations. The generic respondent sought to strike portions of Bayer’s application in regards to the ‘424 Patent, for being scandalous, frivolous and vexatious or is otherwise an abuse of process.

Bayer conceded there was no evidence of direct infringement, but Bayer maintained that health practitioners would infringe as a direct result of PPC’s representations in its Product Monograph and its attempts to have PPC-Moxifloxacin substituted for AVELOX®I.V.

The Court held that there is no infringement of a patent in selling an article which does not in itself infringe the patent, even when the vendor knows that the purchaser buys the article for the purpose of using it in the infringement of the patent. The Court found that whether the Product Monograph instructed others to infringe was a question of fact, not opinion, and there was no evidence that PPC will be seeking to sell its product in combination with sodium chloride.