Appeal of a delisting proceeding; 2009 FCA 35; celecoxib; February 9, 2009

The Minister of Health removed a patent from the Patent Register on the basis that it was ineligible for listing. Pfizer sought judicial review of that decision, which was dismissed. The Court dismissed the appeal, holding that the Minister's decision was consistent with the intended purpose of the NOC Regulations.

An SNDS was filed in 2001. The patent was listed against the SNDS. However, following the October 2006 amendments to the NOC Regulations, the Minister concluded that the patent was not eligible for listing and removed it from the Patent Register.

The patent contained a claim for the use of the medicine to treat pain. The new approved use was for management of pain in conditions such as sprains, post-operative and following dental extraction. The Court held that while this claim would cover the new approved use it would also cover, inter alia, the earlier approved uses. Thus, to interpret section 4(3)(c) as applying in this circumstance would be contrary to the Court's decision in Abbott and to give "a meaning so broad as to defeat the purpose for which [the section] was enacted."

The Court rephrased the test to be applied as: "Does [the patent claim] the very use that was approved by the issuance of the NOC..."

Full text of the decision can be found at:  

http://decisions.fca-caf.gc.ca/en/2009/2009fca35/2009fca35.html