Canada's patent laws are a complete code giving consumers no
right to independent civil actions. This was the conclusion of the
British Columbia Court of Appeal in Low v Pfizer Canada Inc, a decision
which may impede indirect purchaser class actions for patent law
breaches that might have resulted from several recent Supreme Court
of Canada decisions addressing indirect purchaser class actions, discussed previously on this blog.
The Fight Against Pfizer
In Low v Pfizer, the British Columbia Court of Appeal
overturned the certification of a class action relating to Viagra.
In 2012, the Supreme Court of Canada determined that Pfizer's
patent for Viagra was invalid based on the failure of the company
to comply with patent disclosure requirements. Low, who was a
consumer of Viagra, alleged that Pfizer had unlawfully abused the
patent system and had thus prevented cheaper generic versions of
the drug from entering the market. Low argued that, as a result,
Pfizer had overcharged the purchasers of Viagra. He sued Pfizer in
a proposed class action on behalf of all purchasers of Viagra in
British Columbia between 2006 and 2012.
The chambers judge certified the class, finding that Low's
claims of unjust enrichment and unlawful interference with economic
relations were not bound to fail. However, the Court of Appeal
The Canadian patent regime is made up of a number of statutes
and regulations. The Court of Appeal found that it is a complete
code in that it governs the marketing of patented drugs, including
all rights and remedies. The regime confers no direct rights or
protections on consumers. That does not leave the door open for
enterprising consumers to search out civil causes of action under
which to sue patent holders. The Court stated that in circumstances
such as these, where the government has comprehensively legislated
a particular area of the law, the reasonable conclusion is that it
did not intend to extend rights of recovery beyond those expressly
included in the regime.
One of the effects of this conclusion was that the claim of
unlawful interference with economic relations could not succeed.
That cause of action requires, in order to fulfill the
"unlawful" requirement, that a breach of statute be
actionable outside of the context of the statute itself. Having
concluded that the completeness of the patent regime forecloses all
civil actions of consumers rooted in the Patent Act, this
cause of action had no likelihood of success.
The Court further distinguished its earlier decision in
Wakelam v. Wyeth Consumer Healthcare on the grounds that
the British Columbia consumer protection regime at issue in
Wakelam is not a complete statutory code that excludes
equitable claims in unjust enrichment. Even if the patent regime
was not a complete code, Low's claim of unjust enrichment was
bound to fail, as contracts between Pfizer and direct purchasers
constituted a juristic reason for Pfizer's gains.
Impact Going Forward
It remains to be seen whether this decision will be applied to
other heavily regulated industries. For now, it is clear that
consumers attempting to bring patent-related class actions may find
it difficult to find a cause of action that will lead to
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