Prohibition granted on basis of comity

Allergan Inc. v. Canada (Health)

Drug: COMBIGAN® (brimonidine-timolol)

The Court granted an Order of Prohibition to Allergan in the face of a Notice of Allegation from Apotex.

The Court found the allegations of anticipation unjustified. The Court spent considerable time discussing comity and the effect of a previous decision in a proceeding between Allergan and Sandoz that dealt with allegations of obviousness (found here, summarized here). The Court then considered the evidence of obviousness in this proceeding and indicated it would have found the allegations as to obviousness justified. However, the Court held that if it dismissed the application for prohibition then there would be no appeal and there was conflicting jurisprudence on the effect that should be given to matters of comity in NOC proceedings. Thus, the Court granted the Order for Prohibition, with the likely expectation that Apotex will appeal, in order to place the issue of comity squarely before the Court of Appeal.