Janssen Inc v Teva Canada Ltd 2015 FCA 36
This is an appeal from a decision of Barnes J in an NOC proceeding (2014 FC 1192, not yet
publicly available), refusing to grant an order of prohibition . The NOC was issued eight days
after the judgment . The patentees appealed four days later. Unsurprisingly, the FCA has
dismissed the appeal as moot, in accordance with its long-established jurisprudence.
The FCA noted that while it does have the discretion to hear a moot appeal, to date it has
exercised that discretion only once , . Janssen’s main argument that the FCA should
hear the appeal in this case is that Art 9 bis of the IP chapter of CETA gives all litigants
“equivalent and effective rights of appeal” . But as the FCA pointed out, CETA is not yet
part of Canadian law .