PM(NOC): Application for Prohibition Is Moot after NOA Is Withdrawn

PM(NOC): Application for Prohibition Is Moot after NOA Is Withdrawn

Eli Lilly Canada Inc. v. Teva Canada
Limited
2013 FC 28

This application was brought by Eli
Lilly Canada under the PM(NOC) Regulations, seeking an order prohibiting
the Minister of Health from issuing a Notice of Compliance (NOC) to Teva Canada
with respect to a generic version of Lilly's injectable pemetrexed disodium
compound (Altima) until the expiry of Canadian Patents 1,340,794 and 2,400,155.
The application was initiated in response to a Notice of Allegation (NOA) delivered
by Teva. However, Teva failed to file evidence and advised Lilly and the Court
that it had withdrawn its NOA.

Proceeding is dismissed for
mootness.

Section 5(6) of the Regulations
does not imply that the second person cannot unilaterally withdraw its NOA,
subject to the right of the Court to dispose of the proceeding on appropriate
terms including an award of costs.

Although the Court could issue an Order of prohibition
in similar circumstances, the weight of authority indicates that it is generally
undesirable to do so and that it is preferable to deal with abuse of process
concerns as and when they arise. There is no live issue between the parties and
the present application is therefore moot.