In Low v. Pfizer Canada Inc. the British Columbia Court
of Appeal accepted Pfizer's argument that the Canadian patent
regulatory regime does not provide the basis for a civil action by
consumers based on alleged breaches of the patent regime. The Court
found, in relation to a claim pertaining to Pfizer's Viagra,
that the patent regime conferred no rights on consumers, nor did
the regime evince and intention to allow consumers to make claims.
The Court accepted that where Parliament has comprehensively
legislated in a particular area, as it has in respect to patents,
it was reasonable to infer that it did not intend recovery to
extend beyond those embodied in the regime. As a result, Mr.
Low's claim, which was based on the patent regime, was
The decision arose in the context of a proposed class action
brought by an individual consumer alleging that he, and other class
members, were entitled to damages based on alleged overcharges for
their branded Viagra prescriptions. The proposed class action
followed a decision of the Supreme Court of Canada which held that
Pfizer had not been entitled to prohibit a generic manufacturer
from gaining market entry because the underlying patent had not
provided the requisite disclosure required under the Patent
Act. The decision can be found here: http://canlii.ca/t/gmf7t
While the determination that consumers had no claim was a
complete answer to the claims being advanced, the Court of Appeal
went on to find that the specific claims for unlawful interference
with economic relations and unjust enrichment did not disclose a
legal claim. In respect of the tort claim, the Court found that a
breach of a statute will only satisfy the "unlawful
means" element of intentional interference with economic
relations if it is actionable outside the context of the
statute. It was found that Pfizer's conduct was not
actionable outside the patent regulatory regime. Further,
having found that the contracts between Pfizer and purchasers of
Viagra were valid, a juristic reason existed to deny recovery to
the plaintiff and the claim in unjust enrichment was also destined
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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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