Apotex Inc. v. Eli Lilly Canada Inc., 2013 FCA 282

The issue to be determined by the Court of Appeal in this appeal was whether an Order  of prohibition in a proceeding pursuant to the Patented Medicines (Notice of Compliance) Regulations can be varied pursuant to Rule 399 of the Federal Courts Rules, as a result of a declaration of invalidity in a subsequent proceeding. The Court dismissed the motion, and Apotex appealed the finding.

The Court of Appeal noted that, in an unrelated proceeding, the Court of Appeal previously has held that an order of prohibition does not get set aside when a patent is declared invalid, and that Apotex must convince the Court of Appeal that this decision is manifestly wrong in order to succeed.

The Court of Appeal held that they were not persuaded that the Court committed a reviewable error but noted that arguments to the effect that prior decisions are bad law are better addressed through an application for leave to appeal to the Supreme Court of Canada.