This was an appeal from an order dismissing part of an impeachment action. Justice Nadon writing for the Court of Appeal agreed with Apotex that Warner-Lambert’s motion to dismiss part of an impeachment action commenced by Apotex was decided in error by the Federal Court judge. Consequently, the appeal was allowed, the judgement of the Federal Court was set aside and the motion for the dismissal of part of the action was dismissed.

The Court of Appeal reasoned that Apotex should be allowed to continue with its impeachment action on two patents (the ‘330 and ‘615 patents) even though one of them expired in 2011 (the ‘615 patent) because, in light of the Statute of Monopolies and Gilbert Surgical Supply Co. Ltd v. Horner (1960) 34 CPR 17 (Ont. C.A.) a declaration of invalidity of the ‘615 patent is a necessary condition to proceedings Apotex intends to commence in Ontario under the Statute of Monopolies. In Gilbert Surgical Supply, the Court of Appeal of Ontario concluded that although being novel, an action where the invalidity of a patent was the basis upon which the action had been commenced under the Statute of Monopolies, could not be said to be bereft of success.

The decision may be found at: http://decisions.fca-caf.gc.ca/en/2012/2012fca323/2012fca323.html