November 19, 2009, amlodipine
Pfizer filed a motion to amend the contents of its appeal book, its notice of appeal and its memorandum of fact and law on the appeal to deal with the additional grounds. This motion was denied.
After the Trial Court found the patent at issue to be invalid (summary of decision here), ratiopharm brought a motion to set aside the original prohibition order on the patent so that it could also file a claim for section 8 damages. ratiopharm’s motion was founded on Justice Hughes’ finding that the patent was invalid due to section 53(1) of the Patent Act. The outcome of ratiopharm’s motion is discussed in the next summary below.
Pfizer argued that the inclusion of ratiopharm’s motion in the appeal book is material to the Court’s understanding of why it is necessary to address Pfizer’s appeal of the section 53 allegation regardless of the other grounds of appeal.
The Court of Appeal found that this was a bare assertion and there is no specificity as to what Pfizer intends to establish by inclusion of the document. The Court also found that an appellate court should not consider evidence that was not before the court below unless an order is made pursuant to Rule 351 of the Federal Court Rules and no such motion was brought in this case. Although amendments to a Notice of Appeal can be made at any stage of the proceeding, Pfizer must at least indicate that the amendment is necessary and will serve the interest of justice and it has not done so in this case. Thus, the motion was denied.
The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2009/2009fca338/2009fca338.html