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Save It For The Action: Filgrastim Appeal Dismissed As Moot

In Amgen v Apotex, the Federal Court of Appeal dismissed Amgen’s appeal of the Federal Court decision that dismissed Amgen’s application for a prohibition order regarding the drug filgrastim.

Filgrastim is a biologic drug that is used in the treatment of hematopoietic disorders. Amgen unsuccessfully applied to the Federal Court for an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex for its filgrastim products (see our previous post, here). Amgen appealed but before the appeal could be determined, the Minister granted Apotex an NOC.

Apotex then moved to have the appeal dismissed as moot because it had already received an NOC. Amgen argued that Apotex had only received an NOC for one of the two dosage strengths that were at issue in the prohibition application and that the appeal was not moot with respect to the second dosage form. The Court of Appeal concluded that the appeal was moot because the second dosage form was not before the Minister.

Amgen argued that the Court of Appeal should entertain the moot appeal because of the impact it could have on the damages action that Apotex instituted following the Federal Court decision. The Court of Appeal held that the fact that Apotex had instituted a damages action did not distinguish the present case from jurisprudence that established that the Court should not entertain such appeals where the patentee can assert its patent against a damages claim.

The Court of Appeal granted Apotex’s motion and dismissed the appeal.

A copy of the decision may be found here.