Most interlocutory decisions under the Patented Medicines (Notice of Compliance) (PMNOC) Regulations are made by prothonotaries of the Federal Court. Under the pre-amended PMNOC Regulations, parties were permitted to appeal any such decision to a Federal Court judge as of right and a further appeal could be made to the Federal Court of Appeal, also as of right. Under the amended PMNOC Regulations (for further details please see "Amended PMNOC Regulations: first anniversary update"), any appeal of an interlocutory order made by a Federal Court prothonotary or judge must be heard by the Federal Court of Appeal, and only if the Federal Court of Appeal grants leave.
The first Federal Court of Appeal decision in an appeal of an interlocutory order under the amended PMNOC Regulations was issued on 27 June 2019. The Federal Court of Appeal dismissed Apotex's appeal of a prothonotary's decision declining to order Bristol-Myers Squibb (BMS) to answer five discovery questions in an action relating to apixaban (BMS' Eliquis).(1) The questions generally related to BMS' pleading alleging the, for example, advantages and benefits of apixaban, as disclosed and claimed in the patent at issue. The Federal Court of Appeal found that the prothonotary was entitled to arrive at a view of what was best for the particular proceeding and saw no reviewable error that would justify its intervention.
(1) Apotex v Bristol-Myers Squibb Canada, 2019 FCA 194.
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