The Court granted prohibition in respect of two Notices of Allegation alleging invalidity.
In a previous NOC proceeding relating to the same patent, but with a different generic company than in the within case, the Federal Court of Appeal had reversed the Trial Judge's finding that the allegations were justified, and had granted an order of prohibition. The Court held in this case that, with respect to each allegation of invalidity, the Court must consider whether the allegation is new and different, as compared to the allegation made in the previous proceeding. If different, the allegation will be determined as a matter of first instance. If the allegation was addressed in the previous hearing, "better evidence" or "more appropriate legal argument" must be presented in order to justify not following the earlier decision. The Court also kept in mind that a generic company can always, without the constraints of res judicata, raise issues of validity in an impeachment action.
The Court found that there had been no error of law in the previous proceeding, and furthermore, the evidence in this proceeding was not better. Thus, there was no reason to deviate from the conclusions in the previous proceeding.
The full text of this decision can be found at: http://decisions.fct-cf.gc.ca/en/2008/2008fc11/2008fc11.html