Defendants in PM(NOC) actions may counterclaim by right against non-asserted patent claims.
The plaintiffs brought a motion for summary judgment to dismiss the defendants' counterclaims respecting patent claims not asserted in actions commenced under s. 6(1) of the PM(NOC) Regulations.
The plaintiffs argued that defendants could only counterclaim against non-asserted claims with leave of the Court.
The Federal Court determined the question of law in the defendants' favour, ruling that defendants may counterclaim by right against non-asserted claims under s. 6(3)(a) of the Regulations, though such counterclaims remain subject to potential motions to strike under Rule 221(1).
Patent for sitagliptin phosphate found valid and infringed; allegations of obviousness and insufficiency dismissed.
This judgment arises from a patent infringement action brought under subsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations.
The patent at issue is Canadian Patent No. 2,529,400.
The plaintiffs claimed that the making, constructing, using or selling by the defendant of its sitagliptin phosphate tablets would infringe the patent.
The defendant asserted the patent was invalid for obviousness and/or insufficiency.
The Federal Court dismissed the allegations of invalidity and found the claims to be valid and infringed.
