Canada’s Federal Court Refuses to Reconsider Issuance of Prohibition Order Due to Defective Notice of Allegation

We previously reported that Justice Brown of Canada’s Federal Court had allowed a prohibition application by Bayer Inc against Fresenius Kabi Canada Ltd concerning Fresenius’s generic moxifloxacin hydrochloride (HCl) injection (Bayer’s AVELOX I.V.®) and Bayer’s Canadian Patent No. 2,192,418 claiming moxifloxacin HCl monohydrate (Bayer Inc v Fresenius Kabi Canada Ltd, 2016 FC 581, previously reported in the E-TIPS® newsletter).  Although he found that Fresenius’s non-infringement allegation was justified, Brown J determined that the NOA was defective for failing to adequately disclose the factual and legal basis for the non-infringement allegation. Consequently, he issued a Prohibition Order against Fresenius.  Fresenius brought a motion for reconsideration and also appealed to the Federal Court of Appeal.

In its motion for reconsideration, Fresenius argued that the remedy of a Prohibition Order was inconsistent with the Reasons on the basis 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 and was justified.

Brown J dismissed Fresenius’s motion, finding that Fresenius was in effect rearguing the application and that his Reasons and Judgment were consistent.  He noted that it was for the Federal Court of Appeal to correct any errors in his Reasons and Judgment (Bayer Inc v Fresenius Kabi Canada Ltd, 2016 FC 970).