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32827

Abbott Laboratories Limited, et al. v. Attorney General of Canada, et al.

(Federal) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2008-12-23 Close file on Leave
2008-12-19 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2008-12-19 Judgment on leave sent to the parties
2008-12-18 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Federal Court of Appeal, Number A-383-07, 2008 FCA 244, dated July 25, 2008, is dismissed with costs.
Dismissed, with costs
2008-12-09 Correspondence received from, C. Zayid dated Dec. 9/08 re: enclosing a recent decision from the Federal Court of Appeal (by fax - original rec'd Dec. 16/08) (sent to the judges Dec. 16/08) Abbott Laboratories Limited
2008-11-24 All materials on application for leave submitted to the Judges, CJ F Ro
2008-11-10 Applicant's reply to respondent's argument, Completed on: 2008-11-10 Abbott Laboratories Limited
2008-10-29 Respondent's response on the application for leave to appeal, proof of service missing - rec'd Oct. 31/08, Completed on: 2008-10-31 Attorney General of Canada
2008-10-01 Letter acknowledging receipt of a complete application for leave to appeal
2008-09-29 Application for leave to appeal, Completed on: 2008-09-29 Abbott Laboratories Limited

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Abbott Laboratories Limited Applicant Active
TAP Pharmaceuticals Inc., TAP Pharmaceuticals Products Inc. Applicant Active

v.

Main parties - Respondents
Name Role Status
Attorney General of Canada Respondent Active
Minister of Health Respondent Active

Counsel

Party: Abbott Laboratories Limited

Counsel
Names
Andrew J. Reddon
Caroline Zayid
Steven G. Mason
Contact information
McCarthy Tétrault LLP
Box 48, Suite 4700
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Agent
Name
Colin S. Baxter
Contact information
McCarthy Tétrault LLP
1400 - 40 Elgin Street
Ottawa, Ontario
K1P 5K6
Telephone: (613) 238-2000
FAX: (613) 563-9386
Email: cbaxter@mccarthy.ca

Party: TAP Pharmaceuticals Inc., TAP Pharmaceuticals Products Inc.

Counsel
Names
Andrew J. Reddon
Caroline Zayid
Steven G. Mason
Contact information
McCarthy Tétrault LLP
Box 48, Suite 4700
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Agent
Name
Colin S. Baxter
Contact information
McCarthy Tétrault LLP
1400 - 40 Elgin Street
Ottawa, Ontario
K1P 5K6
Telephone: (613) 238-2000
FAX: (613) 563-9386
Email: cbaxter@mccarthy.ca

Party: Attorney General of Canada

Counsel
Name
David Cowie
Contact information
Attorney General of Canada
234 Wellington Street
East Tower - Room 1156
Ottawa, Ontario
K1A 0G9
Telephone: (613) 941-4047
FAX: (613) 954-1920
Email: dcowie@justice.gc.ca
Agent
Name
Christopher M. Rupar
Contact information
Attorney General of Canada
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2351
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca

Party: Minister of Health

Counsel
Name
Frederick B. Woyiwada
Contact information
Attorney General of Canada
234 Wellington Street, Room 1104
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2353
FAX: (613) 954-1920
Email: rick.woyiwada@justice.gc.ca
Agent
Name
Christopher M. Rupar
Contact information
Attorney General of Canada
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2351
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca

Summary

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Intellectual property - Patents - Medicines - Minister of Health applying regulatory amendments and deleting patent from the patent register because the supplementary new drug submission against which the patent was listed specified a new use of a drug that was not claimed in the patent - Whether Court of Appeal erred in interpreting new listing requirements - Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 4(3)(c).

In 1995, the Applicants (collectively, “Abbott”), received notices of compliance for Prevacid, a drug useful in the treatment of ulcers. Abbott filed a supplementary new drug submission (“SNDS”) in 2000 for a new indication for Prevacid, for healing and preventing non-steroidal anti-inflammatory drug ulcers. The patent application for Prevacid was approved in May 2006. Under the Patented Medicines (Notice of Compliance) Regulations (“NOC Regulations”), Abbott was unable to submit the 053 patent for listing on the patent register in connection with its new drug submission (“NDS”) because the patent application date did not precede the NDS date. However, it was able to file the 053 patent against the SNDS because the patent application date preceded the date of filing of the SNDS. Abbott filed the 053 patent list on July 19, 2006. In October, 2006, the NOC Regulations were amended and the new listing requirements applied to those patents filed after June of 2006. The Minister determined that the 053 patent did not meet the new patent listing requirements in s. 4(3)(c) of the amended NOC Regulations because the 053 patent did not contain a claim for the “changed use of the medicinal ingredient” as claimed in the SNDS against which the patent was listed. In 2007, the Minister deleted the 053 patent from the patent register. Abbott applied for judicial review of the Minister’s decision.

Lower court rulings

July 31, 2007
Federal Court of Canada, Trial Division

T-513-07, 2007 FC 797

Application allowed

July 25, 2008
Federal Court of Appeal

A-383-07, 2008 FCA 244

Appeal allowed

Filed documents

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

Not available

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

Downloadable PDFs

Not available

The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613-996-8666 or at 1-844-365-9662.

If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.

Downloadable PDFs

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Webcasts

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Date modified: 2026-08-20