The Court dismissed AstraZeneca’s appeal from the order of a prothonotary refusing to strike parts of Apotex’ evidence and refusing to permit the applicants to file reply.

In the Notice of Allegation (NOA) Apotex stated it would be obtaining the essential ingredient for its medicine from either supplier A or supplier B, each of which used a different process. However, when Apotex filed its evidence, it stated that it would only be seeking to obtain the ingredient from one supplier.

It was argued that the applicants might not have launched the proceedings if they had known only the one supplier was the source of the ingredient and that the applicant may be exposed to a section 8 claim if they persist in respect of the remaining supplier. However, the Court found that this was mere speculation without any evidence to support it. The Court further held that Apotex had not changed its NOA, it merely removed one of the grounds for the allegations as to non-infringement. Thus, it is not a different matter, just less. Furthermore, the applicants did not meet the test for reply evidence. Thus, the motion was dismissed.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2010/2010fc65/2010fc65.html