For a detailed history of this particular proceeding see the July edition of this newsletter. Apotex filed a Notice of Allegation alleging that a particular patent licensed by Janssen-Ortho was invalid and not infringed. Janssen-Ortho sought an order prohibiting the Minister from issuing a Notice of Compliance. At trial, Justice Shore granted the Order of Prohibition and on appeal the Federal Court of Appeal (“FCA”) allowed the appeal and remitted the decision back to Justice Shore for redetermination. In doing so, the FCA ordered Justice Shore to assess the evidence before him independently of Justice Hughes’ decision in some related proceedings. On being remitted back to the Federal Court, Justice Shore recused himself from sitting on any redetermination because he would be unable to reach a different conclusion to that which he had already reached.

Janssen-Ortho brought a motion in the FCA asking the FCA to vary its judgment remitting the decision to Justice Shore for redetermination. Janssen-Ortho said that on reading the decision of Justice Shore to recuse himself it is apparent that Justice Shore was not influenced by the decision of Justice Hughes and the FCA erred in remitting the decision for redetermination. The FCA denied the motion and held that contrary to Janssen-Ortho’s submissions, Justice Shore’s findings had not been made independently of Justice Hughes’ decision. Furthermore, procedurally speaking, the FCA noted that Janssen-Ortho did not appeal the FCA judgment to the Supreme Court of Canada and it was therefore a final decision.

The full text of the decision can be found at:

http://decisions.fca-caf.gc.ca/en/2010/2010fca213/2010fca213.html