Motion to Amend Judgment in SCC Decision Relating to
Sildenafil Filed Teva Canada Ltd. v. Pfizer Canada Inc.
Pfizer has filed a motion to amend the recent judgment of
the Supreme Court of Canada (SCC) regarding sildenafil. In the
alternative, Pfizer is seeking a rehearing on the issue of remedy.
The motion argues that the SCC granted a remedy that exceeds its
jurisdiction by holding that Pfizer's patent is invalid. The
proceeding in the Federal Court was an application brought pursuant
to the Patented Medicines (Notice of Compliance) Regulations, and
thus Pfizer argues that the SCC could only dismiss the application,
and not invalidate the patent at issue. The SCC's decision is
found here, and our summary is here.
Pfizer brought a motion to have the Court determine a question of
law before or at the outset of the trial of the action. The Court
dismissed the motion.
The preliminary question of law related to whether Apotex was an
interested person pursuant to section 60(1) of the Patent Act in
respect of claims where Pfizer had given a covenant not to sue; and
thus whether Apotex could seek to impeach those claims. The Court
held that even if those claims were removed from the proceeding,
the litigation would continue with respect to three other claims.
Thus, the Court concluded that there would probably not be any
reduction in the complexity of the trial. Furthermore, the Court
held that to hear such a motion would likely take at least one day
and any decision received only a few days before trial would result
in little savings in time and expense with respect to the pretrial
preparation by the parties and the Court. Thus, the motion was
In this case, the Plaintiff sought a preliminary injunction to
obtain documents that were placed in escrow. The Court refused to
grant the motion as there was no urgency. Furthermore, the Court
held that the Plaintiff would not suffer irreparable prejudice if
the motion was not granted.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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