Apotex Inc. v. Warner-Lambert Company, 2012
FCA 323

The appellant had brought an application in the Federal Court seeking a
declaration that the respondent’s patents 341,330 and 1,311,615 are invalid.
The ‘615 patent expired during the impeachment proceeding. The respondent moved
that the appellant’s action be dismissed to the extent that it was based on the
‘615 patent. The application judge allowed the motion. The appellant appealed the
dismissal and argued that the partial dismissal of its impeachment action will
affect the right which it intends to assert in an action to be commenced
pursuant to The Statute of Monopolies of Ontario and in a
proceeding for damages under s. 8 of the PM(NOC) Regulations.

Appeal is allowed.

An action under the Statute of Monopolies based on the invalidity
of a patent is not bereft of any possibility of success. The appellant’s rights
would be affected by a dismissal of its action. It was appropriate, in the
circumstances, to allow the appellant to continue with the impeachment action
of both the ‘330 and the ‘615 patents. This was sufficient grounds to reverse
the application judge’s decision. There was no need to address the issues with
respect to the interpretation of s. 8 of the PM(NOC) Regulations.