Colin Hyslop

Firm/Organization: Norton Rose Fulbright

Latest Articles

Patent owner files its own pleading in a PM(NOC) action

By Colin Hyslop, Daniel Daniele (CA) & Brian R. Daley

January 29, 2020

The Federal Court granted leave to the United States of America (USA), in its capacity as co-owner of a patent, to file its own pleading in an action under s 6(1) of the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) Regulations). The USA was permitted to respond to the defendant’s (Apotex Inc.) allegations of invalidity, including by making new and different allegations than those made by the plaintiff. Background This decision arose in the context…

Pharma in Brief

Pharma in Brief: The 2019 Year in Review

By Kristin Wall, Jordana Sanft, Christopher A. Guerreiro & Colin Hyslop

January 19, 2020

In this article, the Pharma in Brief team curated the most significant topics we covered during 2019. The Canadian pharma and life sciences space saw many developments in 2019. These included major policy initiatives and regulatory changes affecting the industry, driven in part by three high-profile federal objectives: lowering drug prices to move towards national pharmacare, replacing the North American Free Trade Agreement (NAFTA), and changes to drug approval pathways. There were few pharmaceutical patent…

Pharma in Brief

Federal Court reinstates damages decision concerning prejudgment interest

By Colin Hyslop, David Yi & Allyson Whyte Nowak

January 15, 2020

The Federal Court has vindicated Lilly, reinstating a patent infringement damages decision that awarded Lilly prejudgment interest equal to its average annual rate of return during the interest earning period, on a compound basis. It found that Lilly’s real-world rate of return was convincing evidence of both what could have and what would have occurred in the but-for world. Background This was a redetermination of the prejudgment interest portion of damages awarded to Eli Lilly…

Pharma in Brief

Federal Court dismisses motion for determination of an issue of law under the new PM(NOC) Regulations

By Colin Hyslop, Judith Robinson & Jordana Sanft

November 29, 2019

The Federal Court dismissed Pharmascience Inc.’s (Pharmascience) motion to determine a question of law on the issue of whether a first person can commence an action under subsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) Regulations) for a drug for which there are no patents listed on the patent register. The Court held that the facts required to determine the motion were contested so answering the question of law would not determine…

Pharma in Brief

Federal Court refuses to allow fifth generic to join common trial on validity

By Colin Hyslop & Jordana Sanft

November 25, 2019

The Federal Court has denied a motion by Dr. Reddy’s Laboratories’ (Dr. Reddy’s) seeking to participate in a common validity issues trial in actions concerning four other generic versions of the same drug under the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) Regulations). Background As we reported, the Federal Court has made a number of orders concerning common validity trials in actions commenced by Bayer Inc. (Bayer) under the PM(NOC) Regulations in respect of…

Pharma in Brief

Federal Court refuses to permit reply evidence on validity issues in action under the PM(NOC) Regulations

By Colin Hyslop, Christopher A. Guerreiro & Kristin Wall

November 7, 2019

On a motion for leave to file reply expert reports, the Federal Court has reinforced the rule against case splitting and outlined the circumstances under which reply expert reports are permissible under the Federal Courts Rules. The Court concluded that none of the proposed reply reports put forward by Teva Canada Limited (Teva) in respect of patent validity issues were proper and dismissed the motion. Background This motion arose in the context of an…

Pharma in Brief

Federal Court relies on foreign prosecution history in first application of file wrapper estoppel

By Colin Hyslop, Christopher A. Guerreiro & Brian R. Daley

October 6, 2019

In CanMar Foods Ltd. v TA Foods Ltd., 2019 FC 1233, the Federal Court interpreted and applied the new file wrapper estoppel provision, section 53.1 of the Patent Act, RSC 1985, c P-4, for the first time. While CanMar is not a life sciences case, the application of Canada’s new file wrapper estoppel provision has implications for patentees generally. In CanMar, the patentee contended that two elements of the claim at issue were non-essential. The Court reached the opposite…

Colin Hyslop

Patent owner files its own pleading in a PM(NOC) action

Pharma in Brief: The 2019 Year in Review

Federal Court reinstates damages decision concerning prejudgment interest

Federal Court dismisses motion for determination of an issue of law under the new PM(NOC) Regulations

Federal Court refuses to allow fifth generic to join common trial on validity

Federal Court refuses to permit reply evidence on validity issues in action under the PM(NOC) Regulations

Federal Court relies on foreign prosecution history in first application of file wrapper estoppel

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