Allergan Inc. et al. v. Canada (Minister of Health) et al. 2012 FC 767
Courts - Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court (incl. judicial comity)
Allergan Inc., Allergan Sales Inc., and Allergan, Inc., applied under the Patented Medicines (Notice of Compliance) Regulations to prohibit the Minister of Health from issuing a Notice of Compliance to Apotex Inc. for a topical ophthalmic product to be known as APO-BRIMONIDINE-TIMOP, a generic version of Allergan’s COMBIGAN (an eye drop medicine used to treat glaucoma), until the expiry of Allergan, Inc.’s Canadian Letters Patent No. 2,440,764 (the ‘764 patent) on April 9, 2023. The basic issue was whether Allergan had discharged its burden of demonstrating that Apotex’s allegations of invalidity of the ‘764 patent were not justified. In determining that matter, there were several discrete issues, including the effect of the previous Federal Court decision in Allergan Inc. et al. v. Canada (Minister of Health) et al.
The Federal Court allowed the application, for reasons of comity. On the evidence, Apotex’s allegations as to obviousness were justified. However, serious issues had been raised as to comity. “The somewhat contradictory decisions of the Court of Appeal should be considered by that Court and clear instruction given as to how, in an NOC context, previous decisions of a Court on the same issues respecting the same patent, should be considered. The only practical way to get the matter before the Court of Appeal is for me to grant the Order for prohibition in the likely expectation that Apotex will appeal.”