Previously published in The Canadian Bar Association in July 2011.
Mark Biernacki and Urszula Wojtyra for the Plaintiffs,
Astrazeneca Canada and Aktiebolaget Hässle
Andrew Brodkin and Daniel Cappe for the Defendant, Apotex
This decision concerned proposed amendments to Apotex' amended statement of defence and counterclaim following an Order striking certain paragraphs with leave to amend.
The Court split the proposed paragraphs into four categories. The first category of paragraphs recited that Apotex was aware of litigation in certain foreign countries where the plaintiffs or related parties were litigants and asserted certain patents for omeprazole. Apotex asked that it be allowed to discover the plaintiffs to find out more about this litigation. The Court did not allow these paragraphs and characterized them as a classic fishing expedition. The Court noted that discovery is not, in and of itself, a separate right to which a party may be entitled; it is part of a process initiated by proper pleading.
The second category of paragraphs related to US proceedings. Apotex pleaded that since the plaintiffs in that litigation (which are the same as the plaintiffs here) did not assert certain claims of the US patent at issue, the plaintiffs cannot assert equivalent claims in the Canadian litigation. The Court noted comments from Justice Layden-Stevenson that admissions made in foreign litigation expressly for the purpose of that litigation only cannot be relied upon in litigation in Canada. The Court also noted her comments that one cannot readily assume that a foreign patent "corresponds" to a Canadian one and that the Court must be mindful of the differences in claim construction, which is a matter of law. The Court did not allow these paragraphs, noting that the Court must be mindful that litigation is costly and that unnecessary, irrelevant or distracting matters should not be put in play simply because there is a possibility of relevance.
The third category of paragraphs related to certain US proceedings and how they referenced proceedings in Korea and the findings of the Korean Court. Justice Hughes did not allow these paragraphs and remarked that Apotex was not a party to any of the litigation referenced in those paragraphs.
The Court allowed the fourth category of paragraphs. These paragraphs related to the Korean action, in which the Korean Court found the product at issue did not infringe the Korean patent. Although it was a different defendant, Apotex said that its product is the same. The plaintiffs, on the other hand, assert that Apotex' product is different. The Court found that this is a matter of evidence to be proved at trial, with the assistance of experts, if appropriate. He also remarked that at the pleading stage, the Court must assume the truth of what is sought to be alleged.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
