The Defendants appealed from an interlocutory order of a judge of the Federal Court which dismissed a request to strike out the statement of claim because it contained speculative pleas of patent infringement and it did not meet the requirements for quia timet action. The Court of Appeal dismissed the appeal. The Court of Appeal noted that while the mere fact that a defendant pharmaceutical company has sought regulatory approval to market a medicine does not by itself support an action for patent infringement. Allegations that a defendant has stockpiled bulk and finished product for both commercial and regulatory purposes and has offered to sell the product to customers are sufficient to support a patent infringement action. The Court also found that claims of past and continuing infringement can support a claim of future continuing infringement. Finally, the Court held that the existence of even a strong defence to a claim (e.g., experimental use) does not justify an order striking the claim.
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