The two companies litigated this patent in proceedings under the PMNOC Regulations . The Federal Court issued an Order prohibiting the Minister from issuing a NOC until the patent expired. The Court of Appeal upheld the Order and the Supreme Court did not grant leave to appeal.

The generic company then sued to impeach the patent at issue. The patent expired in January 2007. The patentee then brought this motion to dismiss the proceeding as an abuse of process.

The Prothonotary dismissed the motion. The Federal Court dismissed the appeal. One of the remedies sought by the generic company, if it succeeds, is a declaration that it is entitled to s. 8 damages from the prohibition proceedings. The Court held that as it is not plain and obvious that a determination of this proceeding will not have legal consequences on the parties, the proceeding cannot be dismissed.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2007/2007fc683/2007fc683.html