Ratiopharm brought a motion to set aside the decision of the Court of Appeal granting prohibition in response to a 55.2 application. The motion was dismissed.
Ratiopharm had served an NOA in respect of a patent and won in the Trial Division. However, due to an additional patent being listed on the Patent Register, Pfizer was able to appeal that decision and the Court of Appeal overturned the decision in the first instance. Shortly after the listing of the additional patent, ratiopharm sent an NOA alleging that patent was improperly listed. The Court agreed, but this decision came after the decision of the Federal Court of Appeal granting prohibition in respect of the first patent.
Ratiopharm argued in the within case that if the additional patent had not been listed, ratiopharm would have received its NOC after the initial proceeding was dismissed, as the Court of Appeal would not have had a chance to overturn the decision of the trial judge. This argument stems from a line of cases that have held that an appeal is moot once the NOC issues. Pfizer argued that this argument is purely hypothetical and that the subsequent delisting of the additional patent does not qualify as "new matter" in the context of a motion to aside a judgment.
The Court of Appeal held that the course of events proposed by ratiopharm was too speculative to give rise to new matter or to justify the invocation of the Court's inherent jurisdiction to set aside a prior decision. Thus, the motion was dismissed.
The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2007/2007fca407/2007fca407.html