The generic company brought a motion to dismiss the proceeding as an abuse of process. The Prothonotary dismissed the motion. The Federal Court upheld the decision.
The generic company has two processes to make its medicine. One process infringes, yet the other process, which is alleged in the NOA and submitted to Health Canada, does not. The generic company argued that the only process to be considered is that submitted to Health Canada. The Court found that the generic company had not met its burden that it is plain and obvious and the application cannot succeed.
The full text of the decision can be found at: