This is an appeal from the Federal Court's (FC) decision (2015 FC 797), which upheld the Prothonotary's decision allowing the generic Respondent's motion to strike all portions of the underlying NOC application by Bayer in relation to its ‘424 Patent (our summary here, Prothonotary's decision here).
The FC engaged in a de novo review and concluded that the Prothonotary did not err in granting the motion because the application had no chance of succeeding at the hearing. Bayer conceded there was no evidence of direct infringement, but rather argued the generic's Product Monograph (PM) would induce infringement. As found by the Prothonotary, the generic's PM spoke for itself and does not direct nor does it instruct use of the generic's product with sodium chloride in concentrations that infringe the ‘424 Patent, and thus, cannot be seen as inducing infringement.
On appeal, the Federal Court of Appeal (FCA) held that the standard of review of palpable and overriding error (as set out by the Supreme Court in Housen v Nikolaisen) would have applied, but for the fact that this was an appeal from a Rule 51 appeal. Past cases involving Rule 51 appeals establish a standard of review of whether "the decision of the Federal Court was arrived at on a wrong basis or was plainly wrong". The FCA applied this standard, even though the standard may have outlived its usefulness. In any event, the FCA would have reached the same result if it had considered the appeal on the basis of the standard of review in Housen .
Ultimately, the FCA was not persuaded that the FC had grounds to interfere with the Prothonotary's decision, nor that the decision of the Federal Court was arrived at on a wrong basis or was plainly wrong. Thus, the appeal was dismissed.