Master Short released a decision on the standing of patent licensees to be added as plaintiffs-by-counterclaim in an Ontario Court proceeding relating to lansoprazole.
The decision dated June 13, 2012 is Apotex v. Abbott, 2012 ONSC 2104 and relates to a proceeding started in 2009 . Apotex brought the underlying action for damages allegedly suffered as a result of Abbott wrongful initiation of PM(NOC) proceedings.
An earlier ruling allowed Apotex to maintain allegations of unjust enrichment and disgorgement (See Apotex Inc. v. Abbott Laboratories, Limited, 2010 ONSC 6909). Counterclaims have been brought alleging that Apotex has infringed patents relating to lansoprazole. The Defendants seek to add additional licensees to the counterclaim pursuant to Section 55 of the Patent Act as plaintiffs to the counterclaim.
Master Short allowed the parties to be added on the basis of Section 55, Federal Court of Appeal’s decision in Signalisation de Montreal Inc. v. Services de Béton Universels Ltée (1992), 46 C.P.R. (3d) 199 (F.C.A.) and the Ontario Court Rules of Civil Procedure.
As noted by the Master, most proceedings relating to the Patented Medicine (Notice of Compliance) Regulations are brought in the Federal Court.