Apotex Inc. v. Pfizer Inc. et al., 2016 FC 136 (Latanoprost*)
Justice Diner - 2016-02-04
Read full decision. Summary prepared by Alan Macek:
Apotex moved for summary judgment on the issue of whether the failure to pay a final fee means that the patent at issue in the underlying Section 8 proceeding was invalid. After reviewing the factual material, including affidavits and/or examinations of the agents and firm at issue, individuals at the patent office and an expert report, the Court concluded that a final fee for large entity nor the proper top-up fee was paid, although the patent office issued the patent. Relying heavily on Weatherford (2011 FCA 228), the court distinguished the consequences to patent applications as compared to issued patents for "administrative breaches" and held that the alleged erroneous final fee payment cannot have the legal effect of invalidating an issued patent. Even though no cross-motion was brought, the motion for summary judgment was granted in favour of the defendants.
Decision relates to:
- T-1064-13 - APOTEX INC. v. PFIZER CANADA INC.
- A-78-16 - which is an appeal from this decision
- T-393-14 - APOTEX INC. v. PFIZER INC ET AL