Supreme Court of Canada Leave Applications - May 2020

Smart & Biggar

Pfizer seeks leave in pregabalin section 8 case

As previously reported, the Federal Court of Appeal (FCA) dismissed Pfizer’s appeal from a decision granting Pharmascience’s motion for a summary trial on Pfizer’s defence of ex turpi causa in an action for section 8 damages related to pregabalin (LYRICA). The FCA rejected Pfizer’s arguments and held that infringement was not a viable defence where the patentee did not bring an infringement action in the real world. On April 27, 2020, Pfizer applied to the Supreme Court of Canada for leave to appeal (Docket no. 39150).

Apotex seeks leave to appeal perindopril accounting of profits decision

As previously reported, the FCA dismissed Apotex’s appeal from a decision ordering it to pay over $61M in profits to the Plaintiffs ADIR and Servier for infringement of ADIR’s perindopril patent. The FCA found that the Federal Court made no palpable and overriding error in holding that Apotex would not have used a non-infringing alternative from third-party manufacturers. On May 11, 2020, Apotex applied to the Supreme Court of Canada for leave to appeal (Docket no. 39172).

Supreme Court denies leave in bortezomib section 8 case

On May 7, 2020, the Supreme Court of Canada denied leave to Millennium Pharmaceuticals and Janssen (Docket No. 39007) with respect to a decision affirming Teva’s claim for compensation under section 8 of the Patented Medicines (Notice of Compliance) Regulations. The FCA upheld Justice Locke’s decision finding that Teva would not have infringed two patents because their relevant claims were invalid for obviousness (as previously reported).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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