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Canada: Settled Law That Claim For Losses Outside Liability Period In s. 8 Cannot Succeed (Intellectual Property Weekly Abstracts Bulletin - Week Of June 25, 2012)
A Prothonotary struck out portions of Teva's Statement of
Claim that claimed losses, damages and harm incurred outside the
liability period as set out in section 8(1) of the NOC Regulations.
The Court dismissed Teva's appeal. The Court of Appeal also
dismissed the appeal, finding that it was settled law that a claim
for losses outside the statutory liability period could not
succeed.
Appeal of Refusal to Add Parties at Remedy Stage
Dismissed
The Court dismissed a motion for the joinder of parties at the
remedy phase of an infringement action in which liability had been
determined. The plaintiffs were seeking to add parties that were
claiming damages through the patentee. A copy of the Court's
decision can be found here. Our summary can be found
here.
The Court of Appeal found no error in principle, and no
misapprehension of the facts in the exercise of the Court's
discretion to refuse the joinder, nor that an obvious injustice
would result from the decision.
Finding of Non-Infringement by Variant Upheld on
Appeal
The Court held that Matrix did not infringe the claims of the
patent in issue. A copy of the Court's decision can be found here. Our summary can be found
here.
The Court of Appeal dismissed the appeal. The parties did not
dispute that the impugned device had a variant of the claimed
invention, and the issue to be determined on appeal related to
whether this variant had a material effect upon the way the
invention worked. The Court of Appeal found no error of law, or
overriding and palpable errors on questions of fact or mixed law
and fact on the record that would have a material impact on the
decision.
Apotex is claiming damages pursuant to s.8 of the Notice of
Compliance Regulations in Ontario Court, and Abbott and Takeda
allege that Apotex infringes certain claims for of two patents.
Takeda brought a motion to add further parties as Plaintiffs to the
counterclaim; pleading that the proposed new Plaintiffs by
Counterclaim are licensees under the patents in question.
The Court held that the parties sought to be added are members
of a supply chain and accordingly, sales lost would affect those
numbers in the supply chain. The Court also held the further
particulars and other information requested by Apotex was not
necessary in order for the pleading to stand. Thus, the motion was
granted, with costs.
Other Cases of Interest
PMPRB Denies Reduction of Excessive Revenues by Sales
Made with Lower Price
Drug: quadracel and pentacel
The Court reviewed a decision of a panel of the Patented Medicine Prices Review
Board (the "Panel") addressing amounts to be paid by
sanofi, and remitted the matter to the Panel for reconsideration.
Our summary of the Court's decision is
here.
The Panel considered the impact of the Court's decision and
again considered sanofi's arguments that excessive revenues
earned in respect of its products before 2007 should be reduced by
sales of those medicines in and after 2007 that were below the
maximum non-excessive price ("MNE price"). The Panel
reasoned that, once it has quantified the excessive revenues,
section 83(2) of the Patent Act only allows the Panel to choose
amongst the methods of offsetting the revenues, and does not permit
the Panel to make a remedial order or to adjust the dollar amount
of the order.
In this case, the Panel found that the Government of Canada (the
"Government") should have the benefit of the MNE price
before 2007 and the benefit of the lower than MNE price that it
negotiated for the period of 2007 and after 2007. Accepting
sanofi's argument would reduce the benefit obtained by the
Government.
Industry News
The Patented Medicine Prices Review Board issued its Annual Report for 2011.
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