Canada: Pharmacapsules - September 2004

Last Updated: October 28 2004

Edited by Adrienne Blanchard and Jennifer Wilkie


  • Patent Case Injunction Upheld On Appeal
  • Innovator Granted Broad Discovery In Damages Proceeding Under The Noc Regulations
  • Healthcare Agreement Reached
  • Rx&D President Urges Pan-Canadian Pharmaceutical Strategy
  • Plea Of Guilty In Internet Drug Sale Scheme In U.S.
  • U.S. House Seeks To Ban Future Trade Agreements That Restrict Drug Reimportation

Patent Case Injunction Upheld On Appeal

In a recent decision, the Federal Court of Appeal upheld a trial judge's decision to award an injunction to the patent holder in a patent infringement proceeding.

Both parties claimed that they would suffer irreparable harm. The defendant testified that it would go out of business if the injunction was granted, as this was their only product. The patent holder testified that it would have no remedy for the infringement if successful, at the end of the trial, as the defendant would not be able to pay any damage award.

Because the defendant had entered the market towards the expiry of the patent the Court held that the defendant knew the risk it was taking and that it was springboarding in order to gain an advantage over other competitors. Furthermore, the Court held that unless the injunction was granted, it would be condoning the defendant's action.

For more information, please see the full decision at:

Innovator Granted Broad Discovery In Damages Proceeding Under The Noc Regulations

The Federal Court recently upheld a prothonotary's decision to allow an innovator to ask broad questions during discovery of a generic company for a damages claim the generic manufacturer brought against the innovator under the Patented Medicines (Notice of Compliance) Regulations. It was held that the following questions were proper: questions relating to the generic's submissions to provincial formularies; questions relating to the innovator's product to which the generic compared its product for approval; questions relating to the generic's conduct in another related proceeding; and questions relating to whether the generic product will, in fact, infringe the innovator's patent.

Specifically, the Court held that all of these matters were relevant, as they were plead in the generic company's statement of claim. They were questions regarding facts that were in dispute.

For more information, please see the full decision at:

Healthcare Agreement Reached

An $18-billion deal over six years was agreed to by the Prime Minister and premiers and territorial leaders. Both the federal government and the provinces made a number of commitments under the deal. Areas of commitment include waiting times, a national home care program, and $18-billion to go into provincial health systems over six years, with a total of $41-billion over ten years to be injected. Details of the framework addressing equalization payments remain to be negotiated at a later date.

For more information, please see:

RX&D President Urges Pan-Canadian Pharmaceutical Strategy

In an Op-Ed published in The Calgary Herald, Rx&D President Russell Williams says a pan-Canadian pharmaceutical strategy is necessary for the sustainability of the Canadian health care system.

Mr. Williams described the First Ministers Meeting as "a golden opportunity for the premiers and prime minister to put forward a new vision — a pan-Canadian pharmaceutical strategy — that can be a "win-win" for patients and decision makers alike."

Rx&D proposes a strategy based on the following principles: patient access to new innovative medicines; physician choice in prescribing appropriate medicines; the optimal use of medicines; and safeguarding Canada's ability to attract and retain new research jobs and investment in pharmaceutical research and development.

For more information , please see:

Plea Of Guilty In Internet Drug Sale Scheme In U.S.

The leader of a group that sold controlled substances over the Internet plead guilty to a federal conspiracy charge before the U.S. District Court in Alexandria. This is the seventh person that has pleaded guilty to the scheme that federal officials say illegally distributed millions of pills to Virginia, Maryland, the District of Columbia and four other states.

Eleven people from five states, along with three corporations, have been charged in the complex investigation that lasted nearly three years. The case highlights the growing problem of the use of the Internet in the spread of controlled substances and other potentially dangerous drugs to customers across the United States by rogue online pharmacies. The Alexandria investigation is one of the largest multi-state efforts in the recent U.S. federal crackdown.

For more information, please see:

U.S. House Seeks To Ban Future Trade Agreements That Restrict Drug Reimportation

On September 8, 2004, a resolution was submitted to Congress opposing the inclusion in future free trade agreements of provisions that would restrict or undermine the adoption of drug re-importation legislation.

The Resolution notes that the House of Representatives has passed legislation that would give Americans access to prescription drugs imported from Canada and other countries, and that the Senate is considering such legislation.

The Resolution further states that: "...provisions of the free trade agreements with Singapore, Australia and Morocco would subject the United States Government to international trade suits by the drug industry if prescription drug importation legislation were implemented" and notes that: "'investor-to state'" suits have been brought against governmental authorities in the United States under earlier free trade agreements, effectively undermining the ability of those authorities to protect the health and safety of their citizens".

Article 17.9(4) of the U.S.-Australia Free Trade Agreement drew heavy criticism from supporters of reimportation of lower-cost prescription drugs from other countries. It states as follows:

Each Party shall provide that the exclusive right of the patent owner to prevent importation of a patented product, or a product that results from a patented process, without the consent of the patent owner shall not be limited by the sale or distribution of that product outside its territory, at least where the patentee has placed restrictions on reimportation by contract or other means.

The U.S.T.R. is of the position that the U.S.-Australia FTA imposes no new barriers to imports but rather reflects current U.S. law, which gives any patent holder the right to control sales of its product in the United States.

For more information, please see:
HRES. 758 IH, 108th Congress, 2nd Session

For more information on this and other trade issues, contact Rick Dearden, or Wendy Wagner at Gowlings.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.