This was an appeal to the Federal Court of Appeal (FCA) of the decision of Justice Hughes to strike AstraZeneca’s Statement of Claim. The FCA agreed with the Judge that the allegation of infringement by Novopharm was not based upon an evidentiary foundation and was therefore an abuse of process by AstraZeneca. The FCA referred particularly to AstraZeneca’s submissions that its position would be fleshed out upon discovery and went on to confirm that such “fishing expeditions” are not acceptable. The FCA also held that the pleaded allegations of future infringement by Novopharm were too speculative to be pleaded – such allegations need to be more than a mere possibility.
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