Pharmascience had previously sent an Notice of Allegation (NOA) with respect to a patent to Aventis, resulting in a full hearing and appeal, concluding with an order of prohibition. Subsequently, certain claims of the same patent were found invalid after a patent infringement action. The Minister, however, refused to grant a Notice of Compliance (NOC) to Pharmascience as the whole patent had not been found invalid in the action.

Pharmascience sought to set aside the prohibition order and have the proceeding dismissed. The underlying NOC proceeding had addressed only an allegation of double patenting and found double patenting. This finding was not upset by the subsequent infringement and validity action. As a result, the motions judge found it would be improper for the Court to dismiss the NOC proceeding but should instead set aside the Prohibition Order to allow the Minister to issue a NOC to Pharmascience. Pharmascience has appealed.

The full test of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2009/2009fc915/2009fc915.html