Apotex commenced an impeachment action in respect of two patents. Warner-Lambert brought a motion seeking to dismiss the action as it related to one patent on the basis that the patent had expired. The Motions Judge granted the motion. Our summary is here.
The Court of Appeal granted the appeal and dismissed the motion. Apotex argued that dismissal of the action as it relates to the one patent affects its ability to commence an action pursuant to the Statute of Monopolies of Ontario and in an action pursuant to section 8 of the NOC Regulations. In a previous decision, the Ontario Court of Appeal held that an action under this Statute was not bereft of any possibility of success and the Court of Appeal found no basis to take a contrary position.