Court Refuses to Reconsider Prohibition Order Granted On The Basis of NOA Insufficiency

As previously described here, Justice Brown granted a prohibition application brought by Bayer relating to the drug moxifloxacin hydrochloride and Canadian Patent No. 2,192,418 on the basis of NOA insufficiency notwithstanding also finding that Bayer had not established Fresenius’ allegation of non-infringement was not justified.

Fresenius, in addition to appealing the Order of Justice Brown, brought a motion pursuant to Rule 397 of the Federal Court Rules seeking a reconsideration of Justice Brown’s Order. It alleged that the remedy of a prohibition order was inconsistent with the Reasons, and the Reasons overlooked specific concessions made by Bayer in its argument.

Fresenius alleged that the NOA was found to be insufficient only as it related to the allegation of non-infringement by importation.  It argued that the remedy was inconsistent with Justice Brown’s finding that the allegation of simple non-infringement was “the essence of Fresenius’ allegation” in the NOA. In his original decision, Justice Brown concluded that Bayer had not discharged its burden to show infringement, and that the manufacturing process, if carried out in Canada, would not constitute infringement.

Fresenius did not seek to disturb the substance of the Reasons given by Justice Brown, but rather that the Bayer’s prohibition application, instead of being granted, be dismissed.

Justice Brown dismissed the motion and concluded that the motion sought to reargue the application, which is not the purpose of a motion to reconsider.  The proper recourse is to the Federal Court of Appeal:

[9] With respect, this motion is in effect a motion to reargue the application. However, that is not the purpose of a motion to reconsider. The Reasons and the Judgment are consistent, and I am unable to identify any slip in drawing it up. In particular, I am satisfied now, as I was then, that the Judgment issued expresses the intention of the Court. If it is in error, it is for the Federal Court of Appeal to make such determination on an appeal.

A copy of the reconsideration Order and Reasons may be found here.