Justice Noël writing for the Court of Appeal disagreed with
Apotex's appeal of Justice Hughes' decision to grant an
order of prohibition with respect of the NOC for
Apo-brimonidine-timop until expiry of the relevant patent.
Consequently, the appeal was dismissed.
Interestingly, the result of Justice Hughes' decision was
upheld on appeal even though the Court of Appeal found that the
order of prohibition was issued for the wrong reason.
Justice Hughes had found that Apotex's allegation of
invalidity on grounds of obviousness was justified. However,
Justice Hughes issued the order of prohibition because, in a
separate NOC proceeding involving the same patent (2011 FC 1316),
the Court had come to the opposite conclusion and, as such, the
issue of comity in the context of NOC proceedings was more properly
left for the Court of Appeal to decide.
Justice Noël concluded that "it was not open to the
Federal Court judge to grant the prohibition in order to further
his desire to clarify the jurisprudence", instead "it is
up to the judges of the Federal Court to determine how [the
doctrine of comity] is to be applied to their decisions".
Moreover, Justice Noël noted that the general view appears to
be that the conclusions of law of a Federal Court judge will not be
departed from by another judge unless he or she is convinced that
the departure is necessary and can articulate cogent reasons for
doing so and that on this test, "departures should be
In addition and in any event, Justice Noël concluded that
when the inventive concept is properly construed, the allegation of
obviousness is not justified. In this regard, Justice Noël
found that the appropriate construction of the inventive concept
should take the patent as a whole (as opposed to only the claims)
Ironically, while criticizing the approach of the Court below,
the Court of Appeal found the allegation of invalidity with respect
to obviousness not justified, contrary to Justice Hughes. Had
Justice Hughes not proceeded as he did, the Court of Appeal would
not have had the opportunity to ensure the proper disposition of
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