The Federal Court of Appeal heard the respondent generic company's motion to dismiss the appeal on the basis of mootness. The Court, one justice dissenting, granted the motion, and dismissed the proceeding.

The majority of the Court held that recent decisions from the Court of Appeal have not changed the issue of whether an appeal of NOC proceeding is moot once an NOC is issued to the generic company. The possibility that other generic companies can rely on the decision in subsequent proceedings does not change the fact that the appeal is moot with respect to the NOC in question. The Court refused to exercise its discretion to hear the appeal on the basis that NOC proceedings are intended to be summary in nature.

The dissenting opinion also found that the appeal was moot. However, the dissenting judge would have exercised his discretion to hear the appeal, in the interest of judicial economy and due to the uncertainty surrounding the validity of selection patents.

The full text of the decision can be found at:  http://decisions.fca-caf.gc.ca/en/2007/2007fca359/2007fca359.html