December 7, 2007, Interlocutory Motion on the 55.2 proceeding; lansoprazole

In this decision, the Court again dismissed a motion by an innovator to reverse the order of evidence in a 55.2 proceeding. The innovator relied on what it alleged were unique circumstances in this case, namely that this proceeding will re-litigate the issue of infringement. Abbott alleged that Novopharm must have better evidence and an explanation for not initially putting forward its best case in the previous litigation, thus Novopharm should file its evidence first.

The Court found that although it had the jurisdiction to reverse the order of evidence, this was not a case where the circumstances to do so were appropriate. Because the Court considers that multiple NOC proceedings may proceed on an infringement issue where there are significant differences in the formulations found in the respective Notices of Allegation, the circumstances of this case are not unique. The generic company will describe the proposed use and it is incumbent on the innovators to show how that use will infringe the patent. To the extent that there are issues regarding whether the new formulation is a significant change or whether the generic company put its best foot forward, these matters are more appropriately dealt with by the trial judge hearing the proceeding.

The full text of the decision can be found at:

 http://decisions.fct-cf.gc.ca/en/2007/2007fc1291/2007fc1291.html