November 15, 2007, drug: oxycodone

The Applicants brought a motion to reverse the order of evidence in the s.55.2 proceeding.

The Court found that it did have the discretion, in the context of case management, to vary the order in which evidence of the parties on an Application is to be served and filed, if it is necessary for the just, most expeditious and least expensive determination of the proceedings on the merits.

The Court saw the most potential for narrowing the issues and gaining efficiencies with respect to allegations of invalidity. The Court also found that if the generic company filed its evidence first it would serve to substantially narrow the issues to be litigated in the matter and it would be likely that far fewer expert reports would be needed. This in turn would limit the risk that reply would be sought or allowed and it would shorten the time frame necessary cross-examinations due to the busy schedule of experts.

However, in this case there was an issue relating to an alleged lack of sound prediction in the patent. The innovator agreed it would likely have to file factual affidavits from the inventors in response to this allegation. Thus, the motion was dismissed.

The full text of the decision can be found at:  http://decisions.fct-cf.gc.ca/en/2007/2007fc1196/2007fc1196.html