Eli Lilly Canada Inc. v. Apotex Inc., 2019 FC 884 (Tadalafil*)
Associate Justice Tabib - 2019-07-03
Read full decision. Automatically generated summary:
The Plaintiffs, who will be referred to collectively as “Lilly” in these reasons, have sued Apotex Inc., Teva Canada Limited, Pharmascience Inc. and Laboratoire Riva Inc (the latter two, collectively referred to as PMS/Riva in these reasons), and Mylan Pharmaceuticals ULC, in independent actions for infringement of patents related to the drug tadalafil. ... In early March 2019, slightly less than nine months before trial, Lilly announced its intention to amend each one of its actions to introduce what amounts to a new cause of action against each Defendant. ... All four Defendants essentially argue that, because the ‘784 Patent is a “use” patent for a known compound, infringement of the patent cannot be established in relation to their product, even if it was designed to be sold and used for the treatment of ED, because infringing use by patients during the period of validity of the patent cannot be established. They argue that none of them sold or could sell their product in Canada until the expiration of the ‘784 Patent, and that no case for infringement of the’784 Patent can possibly be made out since use of tadalafil to treat ED was, by then, no longer protected by patent. While the Defendants raise an interesting argument, it is not one that has previously been recognized by jurisprudence on similar facts, and the Court is not satisfied that it is plain and obvious that the proposed new claim can not succeed.
Decision relates to:
- T-1623-16 - ELI LILLY CANADA INC. ET AL v. PHARMASCIENCE INC.
- T-1624-16 - ELI LILLY CANADA INC, ELI LILLY ET AL v. LABORATOIRE RIVA INC.
- T-1627-16 - ELI LILLY CANADA INC. ET AL. v. MYLAN PHARMACEUTICALS ULC
- T-1631-16 - ELI LILLY CANADA INC. ET AL. v. TEVA CANADA LIMITED
- T-1632-16 - ELI LILLY CANADA INC., ELI LILLY AND COMPANY ET AL. v. APOTEX INC.
- T-1639-16 - ELI LILLY CANADA INC. ET AL. v. ACTAVIS PHARMA COMPANY