Most interlocutory decisions under the Patented Medicines (Notice of Compliance) Regulations (PMNOC Regulations) are made by prothonotaries of the Federal Court (FC). Under the pre-amended PMNOC Regulations, a party was permitted to appeal any such decision to a FC judge, as of right and a further appeal could be made to the Federal Court of Appeal (FCA), also as of right. Under the amended PMNOC Regulations (see our article here), any appeal of an interlocutory order made by a prothonotary or judge of the FC must be heard by the FCA, and only if the FCA grants leave.
The first FCA decision in an appeal of an interlocutory order under the amended PMNOC Regulations issued on June 27, 2019. The FCA dismissed Apotex’s appeal of a prothonotary’s decision declining to order Bristol-Myers Squibb (BMS) to answer five discovery questions in an action relating to apixaban (BMS’ ELIQUIS): Apotex v Bristol-Myers Squibb Canada, 2019 FCA 194. The questions generally related to BMS’ pleading alleging e.g. “advantages and benefits” of apixaban, as disclosed and claimed in the patent at issue. The FCA found that the Prothonotary was entitled to arrive at a view of what was best for the particular proceeding and saw no reviewable error that would justify its intervention.